(        No 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


LAW  LIBRARY 


THE   LAW 

OF    THE 

FEDERAL   AND    STATE   CONSTITUTIOiS^S 
OF  THE  UI^ITED  STATES 


DIAGRAM 
OF   STATE   AND    FEDERAL    POWER 


AB  Federal  and  Sbite  Powers  (i) 


A  Federal  Powers  (17) 

AZ  Federal  Powers 
forbidtleii  to 
States  ( W) 


B  Powers  expressly  reserved 
to  the  States  (simply)  (3) 

BX    Powers  expressly 

I  o  (%)  ^^^  reserved  to  the  States 

I  |a(2lli2.(2!^V      **"^  forbidden  to 


Z  Powers  forbidden 
to  the  States 
(simply)  (11) 


X  Powers  forbidden  to 


U.S.  (simply)  (37) 


Y  Rights  or  Powers  reserved  in  the  People  (39) 
ZX  Powers  forbidden  to  both  States  and  U.S.  (12) 


See  Appendix 


THE   LAW 


OF  THE 


FEDERAL  AND  STATE  CONSTITUTIONS 


OF    THE 


UNITED    STATES 


WITH    AN   HISTORICAL   STUDY   OF   THEIR   PRINCIPLES 

A    CHRONOLOGICAL   TABLE   OF   ENGLISH 

SOCIAL   LEGISLATION 

AND 

A  COMPARATIVE  DIGEST  OF  THE  CONSTITUTIONS 
OF  THE   FORTY-SIX   STATES 


BY 

FREDERIC   JESUP   STIMSON 

Professor  of  Comparative  Legislation  in  Harvard  University ;  Late  Advisory  Counsel 

to  the  United  States  Industrial  Commission  ;  Massachusetts  Commissioner  on 

Uniformity  of  Laws;  Member  of  Massachusetts   Committee 

on  Corporation  Law 

Author  of  "  American  Statute  Laio,"  "  The  American  Constitution  " 

"  Handbook  of  Labor  Law  of  the  United  States  " 

etc.,  etc. 


BOSTON 
THE   BOSTON   BOOK   COMPANY 

1908 


CorYRir.nr,  1908, 
By  Fkkderic  Jesup  Stimson 


THE  UNIVERSITY  PI'.ESS,    CAMmUDGE,    U.  S    A. 


PREFACE 

American  constitutional  law  has  had  its  broadest  development  in 
the  last  twenty  years.  Since  the  cardinal  meaning  of  the  Federal 
Constitution  was  settled  by  the  early  great  decisions,  and  the  relation 
of  the  States  to  the  Federal  Government  once  decided  by  the  Civil 
War,  there  has,  in  a  century,  been  comparatively  little  growth  until 
the  last  decade  or  two.  The  enormous  mass  of  litigation  on  the 
meaning  of  the  "obligation  of  contract"'  and  of  the  words  "com- 
merce among  the  States"  related,  after  all,  to  but  two  short  phrases 
in  that  great  document ;  and  in  the  latter  of  these  two  instances  the 
decisions  of  the  last  twenty  years  far  exceed,  both  in  number  and 
importance,  all  that  went  before.  Constitutional  law,  therefore, 
like  the  law  of  labor  and  free  contract,  is  in  the  United  States  "a  hve 
science."  Both  in  the  States  and  in  the  nation  it  has  had  its  most 
active  discussion  recently;  and  the  matter  bids  fair  to  increase  still 
more  at  the  hands  of  the  next  generation.  The  great  social  prin- 
ciples, of  the  right  of  the  individual,  both  to  property  and  even  to 
personal  liberty,  as  against  the  will  of  a  majority  or  an  organized 
minority  having  the  ears  of  the  executive  and  the  legislative  branches 
of  government,  have  got  to  be  resettled  —  the  great  political  ques- 
tions of  the  social  and  jurisdictional  (not  political)  relation  of  the 
States  to  the  Federal  Government,  the  right  of  the  States  to  their 
own  customary  law  and  their  own  police  power,  have,  it  seems,  once 
more  to  be  fought  over.  No  apology,  therefore,  is  offered  for  pre- 
senting this  work  at  this  time.  It  is  prepared  primarily  for  the 
author's  use  in  his  classes  at  Harvard  University;  not,  therefore,  in 
the  first  instance,  for  a  practising  lawyer ;  rather  for  the  citizen  and 
the  student  of  politics.  Moreover,  considerations  of  space  and 
otherw^ise  have  made  it  advisable  to  duplicate  no  work  that  has  been 
done  before.  No  effort,  therefore,  has  been  made  to  supersede  such 
classics  as,  in  America,  Cooley's  "Constitutional  Law";    and  for 


G69716 

LAW 


vi  PREFACE 

English  history  I  have  largely  relied  upon  Dicey's  "Law  of  the  Con- 
stitution " ;  Taswell-Langmcad,  "  On  English  Constitutional  His- 
tory," Hannis  Taylor,  and  Stubbs'  Charters;  while  for  most  of  the 
sources  of  information  I  have  gone  directly  to  the  "Statutes  of  the 
Realm,"  the  usual  edition  of  which  is  Ruffhead's  "Statutes  at 
Large,"  London,  17G9,  but  the  original  folio  "Statutes  of  the 
Realm,"  when  procurable,  is  to  be  preferred,  as  the  "Statutes  at 
Large,"  like  most  digests  or  selections,  has  a  curious  faculty  for 
omittinjj  what  is  historicallv  most  interesting.  Mention  in  the 
United  States  should  also  be  made  of  "  Miller's  Lectures,"  Patter- 
son's "The  United  States  and  the  States  under  the  Constitution," 
and  McClain's  "Constitutional  Law."  The  book  is  not,  however, 
intended  for  a  case  lawyer.  I  have  cited  cases  only  when  the  propo- 
sition is  in  some  doubt  or  my  authority  not  easily  discoverable.  In 
like  manner,  at  least  in  the  prefatory  essays  (Book  I),  I  have  sought 
to  lay  down  the  general  principles  and  the  broad  antitheses,  not  too 
much  delaying  the  line  of  discussion  to  consider  exceptions  or  quali- 
fications. These  are  usually  to  be  found  in  the  footnotes  to  Book  IIL 
What  has  been  principally  sought  is  to  give  the  history,  origin,  and 
present  tendency  of  American  Constitutions,  both  Federal  and 
State;  and  for  this  purpose  the  bulk  of  the  work  is  made  up  of  a 
careful  comparative  presentation  of  the  forty-six  State  Constitu- 
tions annotated  with  the  corresponding  provisions  of  the  Federal 
Constitution,  and  voluminous  footnotes.  In  Book  II  is  pre- 
sented a  chronological  digest  of  the  more  important  statutes  re- 
ferring to  English  constitutional  principles,  or  even  common  law 
principles  which  became  in  the  lapse  of  centuries  so  universal  as  to 
be  almost  part  of  the  "unwritten  Constitution";  and  also  a  table  of 
excerpts  from  all  the  great  constitutional  documents,  arranged 
chronologically,  thus  showing  their  growth  from  the  simple  phrasing 
of  ^lagna  Carta  to  the  verbose  essays  of  the  Massachusetts  Bill  of 
Rights.  Books  II  and  III,  therefore,  represent  an  attempt  at  com- 
parative study  never,  I  believe,  hitherto  made ;  ^  while  the  first  Book 
is  intended  for  a  broad  historical  essay,  not  too  technical,  on  those 
parts  of  constitutional  law  which  now  most  concern  us,  and  have, 
indeed,  been  most  neglected  by  other  writers ;  for  it  is  very  recently 

^  That   is,   before    1886,    when  the  sity,  has  recently  pubUshed  a  vahxable 

first  edition  of  the  present  Book  I  ap-  essay  on  salient  features  of  the  State 

peared,  without  footnotes,  in  the  au-  Constitutions,    but    without    citations, 

thor's  "American  Statute  Law,"  Vol.  (Am.  Acad.   Pol.  &  Soc.  Science,  Supp., 

I.    Dr.  J.  Q.  Dealey,  of  Brown  Univer-  November,  1907.) 


PREFACE  VU 

that  students  of  constitutional  law  have  begun  to  turn  their  atten- 
tion from  the  political  provisions,  which  were  most  important  in 
English  history,  to  the  broader  principles  of  individual  rights  which 
most  concern  us  to-day. 

The  reason  of  this  is  obvious.  Personal  freedom  was  established 
in  England,  substantially  as  we  know  it  now,  in  the  12th  century. 
It  was  taken  almost  as  a  matter  of  course  by  our  ancestors,  both 
in  England  and  here,  until  within  a  very  few  years.  It  was  the  as- 
sertion of  political  power,  and  notably  of  the  right  to  tax  and  impose 
military  rule  or  law,  that  remained  in  question.  But  when  our  Con- 
stitution was  adopted,  these  principles  also  were  so  engrained  in  the 
popular  mind  as  to  need  hardly  more  than  expression.  Since  then 
more  than  a  century  has  gone  by.  Our  population  has  grown  from 
four  millions  to  eighty  millions,  a  majority  with  no  inherited  training 
in  English  institutions,  and  even  the  American  minority,  in  their 
very  security,  forgetful  of  them.  Two  potent  forces  are  now  at  work ; 
first  that  of  philanthropy,  general  benevolence,  ethical  amelioration, 
seeking  results  rather  than  liberty,  traceable  in  theory  directly  back 
to  Austin,  Bentham,  and  Hobbes;  the  other  the  class-conscious 
multitude  of  organized  labor,  seeking  (and  for  the  same  reason)  to 
reimpose  regulations  and  control  upon  the  actions  of  others  either 
through  or  beside  the  State,  which  was  tried  but  only  partially  tried 
in  the  thirteenth  or  fourteenth  centuries  in  England.  For  the  Eng- 
lish agitations,  when  not  mere  risings  of  the  peasants,  resulted  rapidly 
in  an  exclusive,  almost  aristocratic,  trade-guild.  To  show  how 
striking  is  the  present  activity  of  these  two  forces  I  need  but  to  refer 
to  the  decisions  of  the  Supreme  Court  of  the  United  States.  In  all 
the  ninety  years  from  1796  to  1886  they  found  only  one  thousand 
constitutional  cases  to  consider,  and  in  these  declared  some  two  hun- 
dred statutes  of  States  or  Acts  of  Congress  to  be  unconstitutional. 
In  the  twenty  years  from  1886  to  1906  they  considered  more  than 
thirteen  hundred  cases  of  this  sort,  more  than  half  of  which,  and 
these  much  the  most  important,  were  set  in  motion  by  the  two  forces 
I  have  named,  and  probably  a  larger  proportion  than  before  were 
held  unconstitutional.^  For  State  Constitutional  law  it  is  only  neces- 
sary to  refer  to  the  valuable  annual  bulletins  of  the  New  York  State 
Library.    One  hundred  and  four  laws  of  the  States  or  of  the  United 

*  The  admirable  digest  of  Mr.  Ban-  present   Reporter;    it   will   then  show- 
croft  Davis,  at  the  end  of  131   U.  S.,  precisely  the  figures  which  the  author 
has,  I  believe,  been  ordered  by  the  Pres-  can  only  estimate, 
ident  to  be  brought  up  to  date  by  the 


VIU  PREFACE 


States  were  declared  unconstitutional  in  the  one  year  190G.  It  is  a 
fact  not  possibly  unconnected  with  this  that  during  the  same  year 
forty-six  new  constitutional  amendments  were  adopted  and  thirty 
rejected,  making  the  attempted  output  seventy-six,  just  about  two 
thirds  of  the  one  hundred  and  six  nullifications;  but  only  about  one 
third  of  these  amendments  found  the  favor  of  the  p^'ople.  If  these 
amendments  embodied  in  all  cases  the  same  provisions  which  had 
been  declared  void  by  the  courts,  one  might  draw  the  inference  that 
in  about  two  thirds  of  the  cases  the  people  sustained  the  courts. 
The  true  number,  however,  is  far  greater  than  this.  Nothing  is 
more  interesting  than  the  unanimity  with  which  the  people,  as  a 
rule,  welcome  the  decision  of  their  highest  court  declaring  a  law 
unconstitutional ;  that  is,  in  conflict  with  their  own  will  as  perma- 
nently expressed.  Of  late  years  only  do  we  see  an  ominous  ten- 
dency in  the  other  direction,  due  to  the  unfortunate  fact  already 
adverted  to,  that  so  many  unconstitutional  statutes  embody  the 
rash  attempts  of  philanthropic  and  labor  interests  to  impose  their 
will  upon  others  by  law,  rather  than  by  persuasion  or  the  legiti- 
mate powers  of  the  trades  union. 

In  closing,  a  word  should  perhaps  be  said  as  to  the  form  of  this 
work.  A  table  of  the  Constitutions  referred  to  will  be  found  before 
the  preface ;  the  citations  are  always  made  by  numbers  of  chapters, 
sections,  etc.,  without  any  other  abbreviations;  thus,  1,  2,  3,  will 
mean  Chapter  1,  Section  2,  Clause  3,  or  whatever  other  maybe  the 
division  in  the  Constitution  referred  to.  To  have  done  otherwise 
would  have  been  to  add  inconceivably  to  the  bulk  of  the  work.  The 
index  cites  Book  III  by  sections  and  not  by  pages  in  order  to  avoid 
the  necessity  of  star  pages  in  any  future  edition.  Article  99,  Consti- 
tutional Amendments,  has  been  reserved  for  later  constitutional 
amendments  which  shall  be  adopted  after  April  1,  1908  (that  being 
the  final  date  of  publication  of  this  work).  Fortunately  most  of  the 
States  do  not  adopt  Constitutions  very  frequently,  and  the  amend- 
ments they  adopt,  though  numerous,  frequently  relate  to  such  mat- 
ters of  petty  detail,  the  appointment  of  local  officers,  etc.,  as  fall 
outside  the  scope  of  this  work.  Thus,  Connecticut,  Iowa,  Oregon, 
Maine,  Massachusetts,  and  several  other  States,  have  never  had  but 
one  Constitution;  while  the  amendments  proposed  in  all  are  more 
often  than  not  rejected.  In  1903,  for  instance,  the  forty-five  States 
then  existing  adopted  twelve  amendments  and  rejected  twenty-six, 
and  this  is  about  the  usual  proportion.    This  would  cease  to  be  the 


PREFACE  ix 

case,  however,  if  the  Western  States  continue  their  present  unscien- 
tific tendency  of  embodying  all  that  the  present  majority  wish  to  be 
law  into  the  framework  of  the  Constitution.  This,  however,  I  have 
discussed  more  fully  in  Book  I,  Chapter  XL 

F.  J.  S. 

Cambuidge,  M\rch  31,  1908. 


TABLE   OF   CONTENTS 


Page 
Table  of  Citations xxi 


BOOK   I 

ORIGIN   AND   GROWTH  OF  THE  AMERICAN  CONSTITUTIONS 
Chapter 

I.   Introductory 3 

II.   The  Right  to  Law 11 

III.  The  Right  of  Liberty 18 

IV.  Chancery  and  the  Injunction  Order 24 

V.  The  Right  to  Labor  and  Trade 30 

VI.  The  Right  to  Property      36 

VII.   Other  Constitutional  Rights 41 

VIII.   Rights  of  Government 47 

IX.   Government  Organization     52 

X.   Federal  and  State  Powers 60 

XI.  The  State  Constitutions 68 


BOOK   II 

CONSTITUTIONAL  PRINCIPLES  AS  EXPRESSED  IN  THE 
ENGLISH  STATUTES  OF  THE  REALM  AND  AMERICAN 
CONSTITUTIONS 

CHAPTER  I 

Constitutional  Principles  Protecting  Personal  Liberties 
AND  Private  Rights  as  Expressed  in  Constitutional 
Documents  from  Magna  Carta  to  the  United  States 
Constitutions 

I.   Liberty 

(a)  General  Right  to;  Jury  Trial 75 

(b)  Habeas  Corpus  and  Indictment 77 

(c)  Extent  of  Bail  and  Punishment 78 


xil  TABLE    OF   CONTENTS 

Page 

(d)    Trial  and  Eviilence 78 

(c)    Bills  of  Attainder 79 

(f)  Suspending  Laws 79 

(g)  Treason 79 

II.    Law 

(a)  Common  Law,  Judges      79 

(b)  Local  Courts 81 

(c)  INIartial  Law,  Right  to  Arms,  etc 82 

III.   Property  and  Trade 

(a)  Property 83 

(b)  Trade  and  Monopoly 84 

(c)  Taxation      85 

(d)  INIiscellaneous  Rights 86 

Freedom  of  Speech 86 

Right  to  Petition 86 

Religion 86 

Search  Warrants 86 

IV.   Political  Rights 

(a)  Elections      87 

(b)  Legislatures 87 

(c)  Theory  of  Government 87 

(d)  The  Separation  of  the  Powers 89 

CHAPTER  II 

Historical  Digest  of  English  Social  Legislation     ...  90 

CHAPTER  III 

Division  of  National  and  State  Power 

AZ    Federal  Powers  which  are  Forbidden  to  the  States    ....  108 

A   Powers  Granted  to  the  United  States  Simply Ill 

AB    Powers  Common  to  the  Nation  and  the  States Ill 

B   Powers  Reserved  in  the  States  (Simply) 112 

BX   State  Powers  Forbidden  to  the  United  States 112 

X   Powers  Forbidden  to  the  United  States  Simply 113 

Z   Powers  Forbidden  to  the  States  Simply 115 

ZX    Powers  Expressly  Forbidden  to  Both  the  Nation  and  the  States  115 

Y   Rights  Reserved  or  Expressly  Retained  in  the  People.    ...  116 


TABLE    OF   CONTENTS 


Xlll 


BOOK    III 

THE  STATE  CONSTITUTIONS  DIGESTED,  ANNOTATED,  AND 
COMPARED  WITH  THE  FEDERAL  CONSTITUTION 

Page 

§  1.    Explanatory  Preface 121 

2.    Interpretation  of  the  State  Constitutions 123 

PART   I 

Bill  of  Rights 

§  3.    Note 124 

4.  Bill  of  Rights  Irrepealable 124 

5.  Construction  of  Bill  of  Rights 125 

6.  Individual  Rights 126 

CHAPTER  I 

Bill  of  Rights:   Civil 


Note 


Page 

127 


Art.  1.  —  Natural  Rights. 


§  10. 
11. 
12. 
13. 
14. 
15. 
16. 

17. 

18. 


Freedom 127 

Equality 128 

Life  and  Liberty 128 

Property 128 

Rights  to  Labor  and  Trade  129 

Reputation 129 

Special  or  Exclusive  Privi- 
leges        129 

Hereditary  Privileges     .    .  130 

Pensions 130 


Art.  2.  —  Civil  Rights. 


131 
131 
132 
133 
134 


20.  General  Provisions      .    .    . 

21.  Color  Distinctions   .... 

22.  Exceptions  to  §  21      ... 

23.  Sex  Distinctions :  Voting  . 

24.  Sex  Distinctions :  Schools 

25.  Sex  Distinctions:    Occupa- 

tion     

26.  Sex  Distinctions :  Property 

27.  Sex  Distinctions:   Custody 

ofCliildren 135 


134 
135 


Art.  3.  —  Slavery  and  Appren- 
ticeship. 

§  30.    Slavery  Prohibited     ...  136 

31.  Compensation  for  Slaves    .  136 

32.  Apprenticeships 133 

33.  Tenns  of  Service      ....  133 


Art.  4.  —  Religious  Rights. 


40.  General    Rights    of    Con- 

science   

41.  Limitations  on  §  40    .    .    . 

42.  Compulsory  Support  of 

Churches 

43.  Established  Church    .    .    . 

44.  State  Support      

45.  Religious  Test 

46.  Limitations  on  §  45    .    .    . 

47.  Oaths  and  affirmations  .    . 

48.  Sundays  and  Sabbaths  .    . 

Art.  5.  —  Education. 

50.  General  Right 

51.  Free  Schools 

52.  Time  of  Holding      .... 

53.  Age  of  Scholars 

54.  Unsectarian  Schools   .    .    . 

55.  Compulsory  Attendance 

56.  Universities,  etc 

57.  The  Language 

58.  Libraries 

59.  Legislative  Restrictions.    . 

Art.  6.  —  MiscelLu\neous 
Rights. 

60.  Freedom  of  Speech     .    .    . 

61.  Libel 

62.  Arms 

63.  Pinkerton  Men 

64.  Assemblies 

65.  Emigration 

66.  Immigration 


Page 

137 
137 

138 
138 
138 
139 
139 
140 
140 


140 
141 
141 
142 
142 
142 
143 
143 
143 
143 


144 
145 
146 
147 
147 
148 
148 


XIV 


TABLE   OF   CONTENTS 


AuT.  7.  —  Rights  at  Law. 

r.v(jK 

70.  General  RiKlits 1  IS 

71.  Arnsst  and  Search  ....  II',) 

72.  Trial  by  Jury loO 

73.  Exceptions  to  §  72      ...  ir>0 

74.  Waiver 151 

75.  Suits  against  tlie  State  .    .  151 

76.  The  Cotninon  Law      .    .    .  152 

77.  Laws  Previously  in  Force  153 

78.  Miscellaneous     Riglits     at 

Law L'):5 

79.  Venue 153 


Art.  8.  —  Debtoes. 

80.  Imprisonment  for  Debt      .  153 

81.  Debtor  Mxemption  Laws    .  154 

82.  Homestead 155 

83.  E.vceptions 156 

84.  Alienation 157 

85.  Recording 157 


Pagr 

§  86.    Duration 157 

87.  Stay  Laws 158 

88.  (jarnisliment 158 

Art.  9.  —  E.minent  Do.main. 

§  90.    General  Princij)les  ....  158 

91.  Taking  for  Public  ITse    .    .  158 

92.  Taking  by  Private  Parties  159 

93.  Compensation      160 

94.  Jury  Trial 160 

95.  Tlie  Amount  of  Compensa- 

tion      161 

96.  Appeal      161 

97.  The  Exercise  of  the  Right 

against  Franchises      .    .  161 

Art.  10.  —  Citizens  and  Aliens. 
Language,  etc. 

§  100.    Who  are  Citizens  ....  161 

102.  Aliens'  Rights 161 

103.  Language 162 


CHAPTER    II 
Bill  of  Rights:   Criminal 


Art.  12.  —  Rights  before  Trial. 

§120.   To  Hear  Accusation.    .    .  164 

121.  Bailable  Offences  ....  164 

122.  Excessive  Bail 165 

123.  Imprisonment  of  Parties 

Accused 165 

124.  Witnesses 165 

125.  Habeas  Corpus      ....  166 

126.  Suspension  of  Habeas 

Corpus 166 

127.  Indictment 167 

128.  Grand  Juries 169 

Art.  13.  —  Rights  at  Trial. 

§  130.   Rights  to  Law 169 

131.  Jury  Trial 172 

132.  Juries      174 

133.  Venue 175 

134.  Counsel 175 

135.  Witnesses 176 

138.    Criminating  Evidence  .    .  177 

137.  Twice  in  Jeopardy    ...  178 

138.  Attainder 179 

139.  Miscellaneous 179 


Art.  14.  —  Rights  after  Trial. 

§  140.    Fines  and  Costs     ....      180 
141.    Ex  Post  Facto  Laws   .    .      182 


§142.  Corruption  of  Blood     .    .  182 

143.  Suicides 182 

144.  Deodands 182 

145.  Appeals 183 

146.  Fees  and  Costs 183 


Art.   15.  —  Special  Provisions 
concerning  CrixMinal  Offences. 

§  150.   Treason 183 

151.  DuelUng 183 

152.  Bribery 184 

153.  Lobbying 184 

154.  Corrupt  Legislation  .    .    .  184 

155.  Special  Crimes 186 

156.  Embezzlement 185 

157.  War  Exemption    ....  187 

158.  Felony 187 


Art.  16. 


Pardons. 


§  160. 
161. 
162. 
163. 
164. 
165. 


Pardon  Power 187 

What  may  be  Pardoned  .  188 

The  Effect  of  a  Pardon    .  189 

Reprieves 189 

Fines  and  Forfeitures  .    .  189 

Lynch  Law 189 


TABLE   OF   CONTENTS 


XV 


PART  ir 
Political  Provisions 


§  ISO.   Note 


Page 
191 


Art.  18.  —  Rights  of  Govern- 
ment. 

§  181.  Authority    derived    from 
the  People      .... 

182.  Form  of  Government   . 

183.  Object  of  Government 

184.  Officers 

185.  Fundamental  Principles 

186.  Representation      .    .    . 

187.  Gerrymandering    .    .    . 

188.  Initiative     and    Referen- 

dum      

Art.  19.  —  State  Sovereignty. 

§  190.    United    States    Constitu- 
tion       193 

191.  Allegiance 194 

192.  Secession 194 

193.  State  Rights 194 


191 
192 
192 
192 
193 
193 
193 

193 


Art.     20.  —  Constitution  op 
THE  State  Governments. 


200. 
201. 
202. 
203. 
204. 


205. 


206. 


The  Three  Functions    .    .      195 
Political  Constitution   .    .      196 

Executive 198 

Terms  of  office 200 

Special  Qualifications  for 
Senators  and  Repre- 
sentatives    201 

Special  Qualifications  for 

Governor 204 

Pay  of  the  State  Legis- 
lature       205 


Art.  21.  —  Of  Offices  in 
General. 

210.  Appointment 206 

211.  Vacancies 206 

212.  Tenure 207 

213.  Pay 207 

214.  Extra  Pay      208 

215.  Farming  offices      ....  208 

216.  Gerrymandering    ....  208 

217.  Election  of  United  States 

Officers 208 

218.  Corruption 209 


Art.  22.  —  Qualifications  for 
Office. 


220. 
221. 
222. 
223. 
224. 
225. 


230. 
231. 
232. 
233. 
234. 
235. 
236. 
237. 
238. 


Plurality  of  Offices  . 
Age  and  Citizenship 
Disqualifications 
Oath  of  office  . 
Official  Bonds  . 
Political  Tests    . 


Art.  23.  —  Elections. 

General  Provisions 
Votes  by  Ballot  . 
Majority  Vote  .  . 
Australian  Ballot 
Election  Day.  .  . 
Conduct  of  Elections 
Registration  .... 
Freedom  from  Arrest 
Contested  Elections 


Page 
209 
210 
210 
212 
213 
213 


213 
214 
214 
215 
215 
216 
217 
217 
218 


Art.  24.  —  The  Right  of 

Suffrage. 


Citizens 

Residence  Qualifications 
Losing  a  Residence,  etc.  . 
Army  and  Navy  .  .  .  . 
Property  Qualification .  . 
Educational  Qualifica- 
tions     

Southern     State     Provi- 


§240. 
241. 
242. 
243. 
244. 
245. 

246. 

sions 

247.  Challenges      

248.  Primaries 

249.  Municipal  Elections,  Spe- 

cial Provision     .... 

Art.  25.  —  Disfranchisement. 

§  250.   General  Provisions    ...     227 

251.  Insanity 227 

252.  Crime      227 

254.  Bribery 229 

255.  Betting  on  Elections    .    .     229 

256.  Duelling 229 


218 
220 
221 

222 
222 

223 

224 
226 
226 

226 


Art.  26.  —  Removal  of  Officers. 


230 


260.  By  Impeachment  .    . 

261.  The  Causes  of   Impeach- 

ment     230 

262.  Process  of  Impeachment       230 

263.  Effect  of  Impeachment    .     232 


XVI 


TABLE   OF   CONTENTS 


Page 

§  2G5.    Removal  by  Address    .    .  232 

2()().    lloinovul  by  tlu;  (lovernor  2;}.'J 

2()7.    Removal  by  the  Courts    .  234 

2G8.    Other      Removals      from 

Office 234 

Art.  27.  —  The  Legislature. 

§  270.    General  Provisions    .    .    .  23.) 

271.  Quorum       23.3 

272.  Speech  in  tlie  Legislature  236 

273.  Freedom  from  Arrest   .    .  236 

274.  Open  Sessions 237 

275.  Journals 238 

276.  Expulsion     of    Members, 

etc 2.38 

277.  Time  of  Session     ....  240 

278.  Adjournment 241 

279.  Place  of  Session    ....  242 


Art.  28.  —  The  Executive. 

Page 
2S0.    Duties  of  the  Governor    .     242 

281.  Powers  of  the  Governor  .      243 

282.  The  Lieutenant-Governor     243 


Art.  29.  —  The  Militia. 

290.  General  Provisions 

291.  The  Militia  consists 

292.  Civil  Power    .    .    . 

293.  Martial  Law  .    .    . 

294.  Standing  .\rmies   . 

295.  Billeting  Soldiers  . 

296.  Privileges  of  Militia 

297.  The     Governor    is    Com 

mander-in-Chief     .    . 

298.  Purposes  of  the  Militia 

299.  Miscellaneous  Provisions 


244 

245 
245 
246 
246 
246 
247 

247 
247 
248 


PART  III 

Legislation 


Art.  30.  —  Process   of    Legis- 
lation. 

I  300.    Bills 249 

301.  Form  of  Bills 249 

302.  Passage  of  Bills     ....  250 

303.  Voting 251 

304.  Veto  Power 252 

305.  Pocketed  Bills 253 

306.  General  Restrictions     .    .  254 

307.  Amendments,       Repeals, 

and  Revisions    ....  254 

308.  When  Acts  take  Effect     .  255 

309.  Referendum    and    Initia- 

tive        256 

Art.  31.  —  Form  of  Revenue 

Bills. 

J  310.    Origin 260 

311.  The    General    Appropria- 

tion Bill      261 

312.  Other  Appropriation  Bills  261 

313.  Voting 262 

314.  Tax  Bills 262 

315.  State  Debt  Bills    ....  263 

316.  State  Aid  Bills 263 

Art.  32.  —  Appropriations. 

§  320.    Warrants,  etc 263 

321.  State  Accounts      ....  264 

322.  Private  Appropriations, 

Claims,  and  Debts    .    .  264 


§323. 

324. 
325. 

326. 
327. 

328. 


§  330. 
331. 
332. 
333. 
334. 

335. 
336. 
337. 
338. 
339. 

Art. 

§  340. 
341. 
342. 
343. 
344. 


Charitable  and  Sectarian 

Appropriations      .    .    .  266 
Internal  Improvements    .  266 
Miscellaneous        Restric- 
tions      267 

Loans  of  Credit,  etc.     .    .  267 

Money 267 

Embezzlement,  etc.      .    .  268 

Art.  33.  —  Taxation. 

General  Principles     .    .    .  268 

Taxable  Property     ...  269 

Exemptions 271 

Taxes  Equal 274 

Valuation      and      Assess- 
ment      274 

Purposes  of  Taxation   .    .  275 

Amount  of  State  Tax  .    .  276 

Special  State  Taxes      .    .  276 

Poll  Tax 276 

Income  and  License  taxes  277 

34.  —  Municipal  Finance 
AND  Taxation. 

General  Principles     .    .    .  279 

Amount  of  Municipal  Tax  279 

Prescribed  Purposes.    .    .  281 

Special  Taxes 281 

Power  to  Contract  Loans  282 


TABLE   OF    CONTENTS 


XVll 


Page 

§  345.    Loans  of  Credit,  etc.     .    .  282 
346.    Limitations     on     Section 

345 283 

Art.  35.  —  Collection  op 
Taxes. 

§  350.    Sworn  List 283 

351.  Sale  for  Taxes 283 

352.  Redemption 284 

353.  Tax  Titles 284 

354.  State  Boards  of  Equaliza- 

tion       284 

Art.  36.  —  State  Debts. 

5  360.   Temporary  Loans.    ...  284 

36  L    Other  Debts 285 

362.  Payment  of  Debts     ...  288 

363.  Ratification  by  the  People  286 

364.  Limitations  on  the  State's 

Power       to       contract 

Debts      287 

365.  Repudiation 287 

Art,  37.  —  Municipal  Debts. 

\  370.   Purposes 287 

37L   Amount      288 

372.  Voting 289 

373.  Payment 290 

374.  Collection    of    Municipal 

Debts      290 

375.  Form  of  Bonds      ....  290 

Art.    39.  —  Matter   of   Legis- 
lative Power. 

\  390.    State  Legislatures     ...  290 

39L    In  General 290 

392.  Suspending  Laws      ...  291 

393.  Laws  Impairing  Contracts  292 

394.  Laws  to  be  General  .    .    .  292 

395.  Local  or  Special  Laws      .  293 

396.  Laws  to  be  Uniform     .    .  298 

Art.  40.  —  Land  Laws. 

\  400.   Tenure 298 

401.  Feudal  Tenure 299 

402.  Entails,       Primogeniture, 

and  Perpetuities    .    .    .  299 

403.  Mortmain 299 

404.  Monopolies 300 

405.  Long  Leases 300 

406.  Record  of  Conveyances    .  300 

407.  Landsof  the  United  States  300 

408.  Public  Lands 301 

409.  Forest  Preserve     ....  302 


Art. 


§410. 
411. 
412. 
413. 
414. 
415. 
416. 
417. 
418. 
419. 


41.  —  Navigable  Waters 
and  Easements. 

Page 

Navigable  Waters     .    .    .  302 

Special  Streams     ....  302 

Jurisdiction 302 

Water  Front      303 

Wharves 303 

Drains 303 

Franchises      303 

Hunting  and  Fishing    .    .  304 

Use  of  Water 304 

Riparian  Rights    ....  300 


Art.  42.  —  Personal  Property. 

§  420.  Record 306 

421.  Seal 306 

422.  Interest 307 

423.  Money 307 

424.  Trust  Funds 307 

425.  Stockjobbing 307 

426.  Lotteries 307 


Art.  43.  —  Law  of  Persons. 

Marriage 308 

Registration 308 

Names 308 

Warehouses 308 

Warehouse  Receipts     .    .  308 

435.  Drawbacks  and  Rebates  .  309 

436.  Carriers 309 

437.  Cattle  and  Stock  ....  309 
Physicians 309 


§430. 
431. 
432. 
433. 
434. 


438. 


Art.  44. —  Health  and  Mor.\lity. 

§  440. 
441. 
442. 
443. 
444. 
445. 
446. 
447. 
448. 
449. 


Live  Stock  .  .  . 
Board  of  Health  . 
Inspection  Laws  . 
Dealing  in  Futures 
Fire  Protection 
Liquor  Traffic  .  . 
Prohibition  .  .  . 
Local  Option  .  . 
Dispensary  System 
Vagrant  Laws    .    . 


309 
309 
310 
310 
310 
310 
310 
310 
311 
311 


Art.  45.  —  Labor. 


§  450. 
451. 
452. 
453. 
454. 
455. 
456. 
457. 
458. 


General  Principles     ...  311 

Days'  Work 311 

Wages 312 

Public  Work      312 

Special  Employments  .    .  312 

Women  and  Children   .    .  312 

Wage-payments    ....  312 

Liens       312 

Blackhsts 313 


xvm 


TABLE   OF   CONTENTS 


Page 

§  459.    Strikes  and  Boycotts    .    .  .'513 

4(50.    Factories,  Minos,  etc.    .    .  3i:{ 

461.  State  Inspectors    ....  31.'i 

462.  Employers'  Liability    .    .  313 

463.  Prison  I^abor 314 

464.  Alien  Labor 314 

465.  Arbitration 314 

Art.  50.  —  Private  Corporations. 

§  500.    Definition 315 

501.  General  Principles     .    .    .  315 

502.  Creation      315 

503.  Repeal 317 

504.  Existing  Corporations      .  317 

505.  Foreign  Corporations    .    .  318 

506.  Business,  Ultra  Vires,  etc.  319 

507.  Office  in  the  State,   Re- 

ports, etc 319 

508.  Suits 320 

509.  Liabilities  of  Stockholders  320 

510.  Voting 320 

511.  Liabilities  of  Directors   .  321 

512.  Issue  of  Stock 321 

513.  Increases  of  Stock     ...  321 

514.  Preferred  Stock     ....  322 

515.  Time 322 

516.  Real  Estate 322 

517.  Assignment  of  Franchise  322 

518.  Consolidation,     Combina- 

tion, etc 322 

519.  Taxation 323 

Art.  52.  —  Railroads. 

§  520.    Highways 324 

521.  Carriers 324 

522.  Legislative  Control   .    .    .  325 

523.  Short-Haul  Clause    ...  325 

524.  Discrimination 326 

525.  Passes,       Commutations, 

etc 327 

526.  Connections 327 

527.  Consolidations  and  Com- 

binations      328 

528.  The  Rolling  Stock     ...  329 

529.  Location 329 


§  530. 

531. 
532. 
534. 
535. 
536. 
537. 
538. 
539. 
540. 
541. 


§  550. 
551. 
552. 
553. 
554. 
555. 
556. 
557. 
558. 
559. 


Page 
Office    and    Officers,    Re- 
ports, etc 329 

Ultra  Vires 330 

Railroad  Commissioners  .  330 

Liabilities 332 

Damages  for  Death  .    .    .  333 

Street  Railways     ....  334 

Telegrapli  Companies  .    .  334 

Foreign  Railroads     .    .    .  335 

Local  Aid 335 

Taxation 335 

Switches,  etc 337 

Art.  55. —  Banks. 

State  Banks  Forbidden 
Money  and  Banknotes 
Specie  Payments  .    . 
Security  of  Notes 
Insolvency  of  Banks 
Stockholders      .    .    . 

Interest  

Limitation  of  Charter 
Trust  Companies  .    . 
Reports 


337 
337 
337 
338 
338 
338 
338 
338 
338 
338 


Art.  56.  —  Insurance  Companies. 
§  560.    Deposit 339 

Art.  57.  —  Miscellaneous  Cor- 
porations. 

§  570.   Religious 339 

571.   Co-operative 339 

Art.  58.  —  Trusts. 
§  580.    General  Principles     .    .    .     339 
581.    Monopolies  and  Perpetu- 
ities      340 

Art.  60.  —  Municipal  Corpora- 
tions. 

§  600.  Local  Government    ...  341 

601.  MunicipaUties 342 

602.  Officers 343 

603.  Citizens'  Rights     ....  343 

604.  Specified  Systems,  etc.     .  343 

605.  Franchises      343 

606.  Police  Power 345 


Art.  65. 


PART   IV 

Judicial  System 


650.  General  Principles    .    .    .     346 

651.  Courts 346 

652.  Jurisdictions 347 


§  653.    Opinions 348 

653.  Appeal 348 

654.  Judges 348 


TABLE    OF    CONTENTS 


XIX 


Art.  66.  —  Remedial  Laws. 

Page 

660.    Laws  General 350 

66  L   Arbitration 350 

662.  Contempts 350 

663.  Attorneys 351 

664.  Codes 351 

665.  Speedy  Decisions  ....  351 

666.  Opinions 351 

Art.  67.  —  Procedure. 

670.  Forms  of  Action    ....  352 

671.  Equity 352 


§  672.  Feigned  Issues  .    .    . 

673.  Juries:  Qualifications 

674.  Disqualifications    .    . 

675.  Charging  the  Jury    . 

676.  Amendments      .    .    . 

677.  Witnesses:  Parties    . 

678.  Parties  Deceased  .    . 

679.  Depositions    .... 

680.  Limitations    .... 

681.  Payment  into  Court 

682.  Abatement     .... 


Page 
352 
352 
352 
353 
353 
353 
353 
353 
354 
354 
354 


PART   V 

Constitutional  Amendments 


Art.  99.  —  Process  of  Amend- 
ments. 

§  990.    How  Proposed 355 

991.  Ratification  by  the  People     356 

992.  Ratification  by  the  Legis- 

lature       356 


993.  Restrictions 356 

994.  General  Revision  ....  356 

995.  Ratification 357 

996.  Amendments       to       the 

United  States  Constitu- 
tion       357 


Index 


359 


TABLE   OF   CITATIONS 


The  Constitutions,  State  and  Federal,  are  cited  by  section  number 
only  if,  as  in  many  States,  it  is  continuous;  otherwnse  by  number  of 
Chapter,  Article,  or  other  subdivision,  separated  by  commas.  The 
Statutes,  State  or  National,  are  cited  in  like  manner  from  the  latest 
revision  or  the  volumes  of  Annual  Laws,  but  are  always  distinguished 
by  an  asterisk. 

For  the  amendments  I  am  indebted  to  the  industry  and  courtesy  of  the 
New  York  State  Library  in  its  "Yearbooks  of  Legislation,"  founded  by 
Robert  H.  Whitten  and  continued  by  Edwin  H.  Anderson,  Director. 
My  thanks  are  also  due  to  the  Secretaries  of  State  of  the  several  States 
who  have  nearly  all  obliged  me  with  editions  of  the  several  State  Con- 
stitutions in  pamphlet  form ;  in  Georgia,  however,  it  is  "  not  procurable." 
The  inaccessibility  of  State  Constitutions  is  greatly  to  be  deplored.  Some 
States,  like  New  Hampshire  and  Ohio  do  not  print  them  at  all  with 
their  general  law^s.  Oregon  and  other  States  entirely  omit  constitutional 
amendments,  while  hardly  any  State  follows  the  example  of  Massachusetts 
in  printing  the  Constitution  in  its  correct  form  every  year.  Texas, 
West  Virginia,  and  many  another  State  do  not  date  their  Constitution  or 
the  amendments ;  while  the  usual  compilations  of  the  laws  of  New  York 
and  the  official  compilation  of  Georgia  and  several  other  States  commit 
the  last  inanity  of  printing  the  State  Constitution  alphabetically  under 
C,  as  if  it  were  an  ordinary  law.  The  following  table,  however,  is  believed 
to  be  accurate  so  far  as  is  possible  under  the  circumstances. 

Alabama  (Ala.),  (Constitutions  of  1819,  1868,  1867, 1875)  Constitution  of  1901 

Arkansas  (Ark.),  (1836,  1864,  1868) Constitution  of  1874 

California  (Cal),  (1849) Constitution  of  1879 

Colorado  (Col.) Constitution  of  1876 

Connecticut  (Conn.),  (1776) Constitution  of  1818 

Delaware  (Del.),  (1776,  1792,  1831) Constitution  of  1897 

Florida  (Fla.),  (1838,  1865,  1868) Constitution  of  1885 

Georgia  (Ga.),  (1777,  1789,  1798,  1865,  1868) Constitution  of  1877 

Idaho  (Ida.)      Constitution  of  1889 

Illinois  (III.),  (1818,  1848) Constitution  of  1870 

Indiana  (Ind.),  (1816,  1851) Constitution  of  1851 

Iowa  (lo.),  (1846) Constitution  of  1857 

Kansas  (Kan.),  (1855,  1857,  1858) Constitution  of  1859 

Kentucky  (Ky.),  (1792,  1799,  1850) Constitution  of  1891 


XXll  TABLE    OF    CITATIONS 

Louisiana  (La.),  {1S12,  IS.'tS,  1S52,  1S64,  ISGS,  1S79)    .  Constitution  of  1S98 

Maine  (Mc.) Constitution  of  1820 

Maryland  (Md.),  (1776,  1651,  1SG4) Constitution  of  l.SO? 

Massachusetts  (Mass.) Constitution  of  1780 

Michigan  (Mich.) Constitution  of  1850 

Minnesota  {Minn.) Constitution  of  1857 

Mississippi  (Miss.),  (1817,  1SS2,  1868) Constitution  of  1890 

Missouri  (Mo.),  (1820,  1863,  1865)      Constitution  of  1875 

Montana  (Mon.)      Constitution  of  1889 

Nebraska  {Xeb.),  (1867) Constitution  of  1875 

Nevada  (Nev.)      Constitution  of  1864 

New  Hampshire  (.V.  //.),  (1784,  1792) Constitution  of  1903 

New  Jersey  (N.  J.),  (1776) Constitution  of  1844 

New  York  (N.Y.),  (1777,  1821,  1846) Constitution  of  1894 

North  Carolina  (N.  C.) Constitution  of  1868  as  amended  1876 

North  Dakota  (N.  D.) Constitution  of  1889 

Ohio  (O.),  (1802) Constitution  of  1851 

Oklahoma  (Okla.) Constitution  of  1907 

Oregon  (Ore.) Constitution  of  1857 

Pennsylvania  (Pa.),  1776,  1790,  1838) Constitution  of  1873 

Rhode  Island  (R.  I.) Constitution  of  1842 

South  Carolina  (S.  C),  (1776,  1778,  1790,  1865,  1868)    .  Constitution  of  1895 

South  Dakota  (S.  D.)      Constitution  of  1889 

Tennessee  (Tenn.),  (1796,  1834) Constitution  of  1870 

Texas  (Tex.),  (1845,  1866,  1868) Constitution  of  1876 

Utah  (Uta.)      Constitution  of  1895 

Virginia  (Fa.),  (1776,  1830,  1850,  1864,  1870)     ....  Constitution  of  1902 

Vermont  (Vt.),  (1777,  1786) Constitution  of  1793 

Washington  (Wash.) Constitution  of  1889 

West  Virginia  (W.  Va.),  (1863) Constitution  of  1872 

Wisconsin  (Wis.) Constitution  of  1848 

Wyoming  (Wy.) Constitution  of  1889 


BOOK  I 


ORIGIN  AND   GROWTH   OF  THE  AMERICAN 
CONSTITUTIONS 


CHAPTER  I 

INTRODUCTORY 

The  English  Constitution  is  expressed  in  writing  in  the  Magna 
Carta  of  King  John  (1215);  with  certain  omissions  and  a  few 
additions  in  the  Magna  Carta  of  Henry  HI  (1216),  and  the  Confirma- 
tion of  the  Charter  granted  by  Edward  I  in  1297;  in' the  Petition  of 
Rights  extorted  from  Charles  1  in  1G28,  and  finally  enacted  in  the  Bill 
or  Declaration  of  Rights  subscribed  to  by  William  of  Orange  in  1689; 
in  the  Habeas  Corpus  Act  of  Charles  H  (1679);  and  in  the  Act  of 
Settlement  of  Queen  Anne  (1700).  Besides  this  there  are  certain 
fundamental  statutes  which  by  long  observance  or  by  frequent 
re-enactment  have  grown  to  be  such  essential  parts  of  the  English 
notion  of  liberty  or  government  as  to  be  in  effect  constitutional 
documents;  such,  notably,  is  the  Statute  of  Monopolies  of  1623  and 
the  principle  against  restraint  of  trade  and  monopoly  of  commerce 
or  of  industry  embodied  in  the  long  series  of  statutes  against  fore- 
stalling, engrossing,  regrating,  and  against  by-laws  in  restraint  of 
trade  or  depriving  one  of  his  legal  rights,  which  all  begin  as  early  as 
1285,^  and  only  end  under  George  HI,  when  such  principles  were 
immutably  established  in  the  popular  mind  as  well  as  in  the  law- 
making of  Parliament  and  the   law-giving  of  judges. 

But  the  English  Constitution  should  hardly  be  regarded  as  em- 
bodied only  in  these  documents;  nor  the  American  Constitution, 
outside  the  frame  of  government,  be  considered  as  first  expressed  in 
1787.    Magna  Carta  and  the  other  constitutional  documents  are  but 

*  See    Book    II,   Historical    Digest,  the  date  uncertain,  but  before  Ed.  Ill; 

James  C.  Carter  (Law,  its  Origin,  His-  and  the  statute  punishes  forestalling  of 

tory,  and  Function,  N.  Y.  1907)  seems  "grain  or  any  other  Thing  to  be  sold 

to  confuse  these  statutes  with  those  fix-  coming  by  Land  or  Water,  oppressing 

ing  prices,  and  states  that  they  began  the  Poor  and  deceiving  the  Rich. "  For 

in  1552.     On  the  contrary,  they  were  a  discussion  of   their   relation  to   the 

made  perpetual  soon  after    (13    Eliz.)  modern     laws     against     Trusts,     see 

and   began   under   Edward   I    (1285).  Chapters  V,  VI. 
Statutes  at  Large  (Vol.  1,  p.  188)  calls 


4  THE    AMKIUC.VN    CONSTITUTIONS  [bOOK   I 

the  record  of  the  victories  of  the  people  in  the  long  fight  which  they 
waged  for  their  liberties  against  the  Crown ;  they  mark  the  definite 
establishment  of  Anglo  Saxon  notions  of  liberty  and  law  over  the 
feudal  or  Norman,  European,  Roman  or  Civil  Law  view,  which  the 
Norman  kings  after  the  Conquest,  and,  later,  even  the  Tudors  and 
the  Stuarts,  endeavored  to  impose  on  the  English  people.  Indeed 
the  notion  of  the  sovereignty  of  the  Crown,  of  personal  government, 
only  ended  with  George  III  of  the  House  of  Hanover.  Magna  Carta 
is  in  form  a  treaty  between  the  Norman  king  and  his  English  sub- 
jects, assembled  for  the  first  time  in  a  representative  assembly  in 
which  the  Commons  also  took  part,  whereby  he  recognizes  the 
general  body  of  liberties  of  the  English  freemen  as  known  to  them  at 
that  time.  The  form  of  these  early  constitutional  documents,  con- 
firmations of  charters,  coronation  oaths,  etc.,  is  always  a  recognition 
of  prior  laws,  customs,  or  liberties,  as  already  existing:  "All  the  laws 
and  customs  of  the  men  of  Kent  as  they  existed  in  the  time  of  King 
Witliraed."  For  statute-making  in  the  modern  sense  was  yet  un- 
known. Indeed,  the  very  notion  of  a  statute,  that  is,  a  law  made  by 
a  sovereign  and  addressed  to  his  people,  with  a  sanction  or  threat  of 
punishment  if  disobeyed,  is  a  notion  of  Roman  or  Continental  law ; 
foreign  to  the  genius  of  the  English  folk,  who  made  their  laws  them- 
selves or,  more  correctly,  recognized  all  law  as  but  the  growth  of  the 
free  customs  of  the  people.^  English  legislation  before  the  Conquest 
does  not  consist  in  what  we  should  now  call  making  laws,  but 
rather  in  decreeing  the  scale  of  punishment  for  their  breach;  when 
they  do  make  a  law,  it  is  never  regarded  as  a  new  law,  but  is  merely 
recognized  by  the  Great  Council  as  part  of  the  existing  law  of  Eng- 
land. Their  law-making  was  not  statute-making,  in  the  modern 
sense;  but  at  most  a  recognition,  or  an  expression,  in  writing  for  the 
first  time,  of  the  law  already  existing;  the  primal  distinction  being 
that,  in  England,  the  people  made  the  law,  and  the  king  but  recog- 
nized it.  During  four  centuries  after  the  Conquest  the  kings  vainly 
endeavored  to  impose  upon  the  English  people  the  Continental  view 
that  law  is  the  command  of  a  sovereign  to  a  subject,  not  the  customs 
and  usages  of  the  people ;  an  effort  which  proved  futile,  and  by  the 
eighteenth  century  did  not  survive  even  in  the  royal  veto,  but  only 

*  The  admirable  lectures  of  James  C.  to  state  broad  principles,  witlioiit  re- 
Carter  above  referred  to  argue  strongly  gard   to  exceptions  and  qualifications, 
for   this   principle.     There   are  doubt-  for  which  the  reader  is  referred  to  the 
less  some  Continental  examples  of  such  footnotes  in  Book  III. 
custom-law;  but  this  book  is  intended 


CIIAr.   l]  INTRODUCTORY  5 

in  the  formula  Ic  roij  le  vcut,  by  which  the  king  expresses  his  assent 
to  the  legislation  of  Parliament,  a  perfunctory  act.  For  since  the 
days  of  Queen  Anne,  no  monarch  has  ventured  to  use  even  the  gentle 
formula  which  indicated  the  royal  veto  —  le  roij  s'avLsera. 

The  history  of  the  regaining  by  the  people  of  their  power  to  legis- 
late, almost  forgotten  in  the  middle  centuries,  is  now,  by  the  effort  of 
German  and  English  scholars,  well  known.  We  owe  it,  like  our  own 
Revolution,  to  unconstitutional  taxation.  No  Englishman  was 
bound  to  pay  taxes  but  under  a  general  law  passed  by  his  representa- 
tives in  the  Great  Council  and  for  the  general  good  of  the  whole 
people;  no  arbitrary  exaction,  aid,  impost,  or  levy  by  the  Crown  or 
its  officers  was  tolerated.  This  fundamental  principle,  expressed 
with  the  greatest  distinctness  in  John's  Charter,  was  intentionally 
omitted  by  Henry  III  in  his,  sixteen  months  later  (the  usual  one 
printed  in  the  statutes),  and  only  restored  in  1297  by  Edward  I  when 
the  needs  of  the  war  in  Flanders  compelled  this  concession.  But  the 
principle  was  never  lost  sight  of,  and  there  never  has  been  a  period  in 
the  history  of  England  when  the  people  permitted  any  taxation  for  a 
considerable  length  of  time  in  contravention  thereof;  and  from  the 
very  beginning  they  used  this  principle  to  extort  legislation  restoring 
their  own  law;  that  is  to  say,  decrees  or  statutes  of  the  king  recog- 
nizing the  common  law  of  England  "  as  it  was  in  the  time  of  Edward 
the  Confessor."  For  three  or  four  centuries  after  the  Conquest  there 
was  no  new  legislation,  in  the  modern  sense;  only  the  old  laws 
restored.  The  Commons,  with  that  practical  good  sense  which 
characterizes  the  English  people,  caring  not  for  the  form  provided 
they  got  the  substance,  when  asked  for  grants  of  money  would  put  the 
matters  they  desired  to  be  recognized  as  part  of  the  law  of  England 
into  a  petition,  which  would  be  the  foundation  of  a  statute;  then,  in 
theory,  made  by  the  king,  but  practically  dictated  by  the  Parliament. 
Thus,  gradually,,  all  the  customs  of  England,  with  the  common  law 
of  the  Saxon  kingdoms,  was  recognized  as  the  law.  Finally  the  form 
of  petition  and  decree  (which  still  exists  in  the  machinery  of  legisla- 
tion in  many  of  our  State  Legislatures)  was  dropped,  the  House  of 
Commons  finding  that  the  law  did  not  always  emerge  from  the  king's 
law  officers  as  they  had  drawn  it  in  their  petition ;  and  the  statutes 
were  drawn  in  Parliament  as  well  as  enacted  there,  and  only  sent  to 
the  king  when  in  the  form  of  complete  Acts  for  his  signature.  Thus 
the  power  of  the  purse,  the  taxation  power,  residing  only  in  the  House 
of  Commons,  drew  back  to  it  the  power  to  legislate  and  the  English 


6  THE   AMKRICAN   CONSTITUTIONS  [BOOK    I 

view  of  the  law,  —  as  customs,  grown,  not  made,  based  on  natural 
justice,  common  usage,  and  the  liberties  of  the  people;  laws  not 
newly  ordered,  but  the  result  of  evolution  and  experience.  Hence 
their  wisdom  and  their  strength.  It  is  hard  to  fix  precisely  the  first 
date  at  which  anything  like  constructive  legislation,  as  to  ordinary 
matters  concerning  the  people,  first  appears  in  England.  For  two 
centuries  the  statutes  of  the  realm  are  concerned  with  matters  of 
taxation,  with  recognizing  or  re-establishing  the  common  law,  and 
with  political  matters,  defining  the  powers  of  the  Crown  and  exclud- 
ing the  control  of  the  Roman  Church  and  of  the  Roman  law  over 
secular  matters.  The  Statute  of  Merton,  it  is  true,  in  1235  has  a 
word  about  usury  and  about  the  legitimacy  of  children ;  but  in  both 
cases  it  is  merely  to  enforce  the  Common  Law  of  England  instead  of 
the  Civil  Law  of  the  Church.  For  a  century  more  they  concern 
merely  what  we  should  now  call  procedure,  or  the  penalties  for  the 
infraction  of  laws  already  existing,  feudal  tenures,  and  the  effort  to  fix 
the  prices  of  bread  and  other  necessities  which  was  extended  in  1349 
to  the  wages  of  labor.  The  first  constructive  legislation  that  we  do 
find  is  concerned  with  those  same  questions  that  most  concern  us 
to-day,  —  the  regulation  of  charges,  and  the  prevention  of  the  corner- 
ing of  markets  or  the  making  of  artificial  prices  by  individuals  or  by 
combinations.  The  price  of  bread,  and  ale  and  tolls  of  mills  were 
regulated  by  the  Assize  in  126G;  and  in  1275  the  Statute  of 
Westminster  I  forbids  "excessive  toll  contrary  to  the  common 
custom  of  the  Realm  in  market  towns."  Notice  that  it  is  still 
"the  common  custom  of  the  realm"  that  toll  should  be  reasonable, 
it  is  not  a  new  law;  and  in  1285,  ten  years  later,  appears  the 
statute  against  forestalling  or  engrossing;  that  is  to  say,  monopolizing 
the  market,  —  a  common  complaint  against  the  modern  trust.  In 
1691  the  rates  of  carriers  are  fixed. 

When  we  come  to  the  American  Constitution,  though  now  all  ex- 
pressed for  the  first  time  in  one  document,  its  principles  must,  so  far 
as  they  express  the  English  Constitution,  be  regarded  as  a  continua- 
tion, not  as  a  new  enactment,  and  must  be  taken  with  all  the  historical 
meaning  and  import  with  which  they  were  viewed  in  the  minds  of  our 
ancestors,  far  more  familiar  with  historical  law,  with  constitutional 
history,  than  we  Americans  have  had  to  be  since.  It  was  at  first 
believed  by  our  greatest  judges  and  jurists  that  the  whole  English 
Constitution  was  implied  in  the  Federal  Constitution ;  that  there  is, 
as  it  were,  an  unwritten  Constitution  which  we  inherited  in  America 


CHAP.   l]  INTRODUCTORY  7 

and  which  consisted,  not  only  of  the  English  Constitution  where  not 
expressly  altered  by  our  own,  but  of  all  matters  of  natural  right  and 
justice.  Doubtless  this  is  the  intended  meaning  of  the  Ninth  Amend- 
ment: "The  enumeration  in  the  Constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the  people." 
Such  is  not,  perhaps,  the  modern  view ;  but  the  question  has  become, 
in  fact,  academic,  for  the  reason  that  in  120  years  of  interpretation 
our  Supreme  Court  has  ever  found  some  clause  in  the  Federal  Con- 
stitution into  which  to  read  any  English  constitutional  principle 
not  therein  expressly  altered. 

But  while  w^e  must  insist  that  the  American  Constitution  is  not  an 
instrument  or  a  code  of  rules  created  for  the  first  time  by  a  bodv  of 
gentlemen  however  wise,  and  therefore  subject  to  the  errors  of  an 
ordinary  new-made  document,  we  must  hasten  to  accentuate  the 
point  that  it  is  a  different  Constitution,  the  Constitution  of  another 
country;  while  it  embodies  all  the  liberty  principles  of  the  English 
Constitution,  what  we  may  call  all  its  human  or  social  side,  yet  also 
it  creates  an  entirely  new  frame  of  government,  and  it  invents 
two  or  three  great  new  principles,  —  principles  as  profoundly  im- 
portant as  those  of  Magna  Carta,  principles  now  recognized  through- 
out the  world  as  America's  great  contributions  to  the  science  of 
government.  First  of  all  these  we  should  put  that  invention,  be  it 
Franklin's  or  Felatiah  Webster's,  by  which  a  centralized  national 
government  is  given  all  the  political  power  necessary  for  the  pro- 
tection of  the  whole  country  and  the  conduct  of  foreign  relations, 
while  the  States  are  carefully  preserved  to  secure  to  the  people  their 
own  laws  and  governments  and  courts  at  home,  —  the  marvellous 
dual  system  whereby  power,  in  so  vast  a  country,  is  made  compatible 
with  liberty.  Second,  the  great  principle  of  the  separation  of  the 
powers,  suggested,  indeed,  to  Montesquieu  and  others  by  the  practi- 
cal working  of  things  in  England,  but  never  formally  embodied  in 
the  Constitution  of  any  country,  not  even  to-day,  except  our  own; 
that  principle  that  they  who  make  the  laws  may  not  administer  them, 
and  he  who  administers  them  may  not  judge  them,  "  to  the  end  it  be  a 
government  of  Laws  and  not  of  Men."  ^  Third,  most  novel,  perhaps, 
and  still  but  half  understood,  the  first  great  attempt  of  democracy  to 
found  a  nation  without  entrusting  the  sovereign  power  away  from 
itself,  or  in  the  hands  of  any  one  branch  of  government.  This,  to  me, 
is  the  most  wonderful  political  occurrence  in  modern  history;  that 
»  See  Chapters  VIII,  X,  below. 


8  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

the  people,  having  (for  eleven  years  from  177G  to  1787)  for  the  first 
time  in  the  history  of  the  world  gained  all  the  reins  of  power,  should, 
voluntarily  and  of  their  own  high  intelligence  and  patriotism,  have 
put  certain  things  beyond  the  power  of  their  own  Congress,  of  their 
own  Legislatures,  of  the  very  government  they  were  about  to  create.* 
Theirs  was  the  high  experiment,  to  found  a  nation  that  should  forever 
be  without  Imperial  power ;  wherein  the  Bill  of  Rights,  the  cardinal 
principles,  should  be  kept  from  the  hands  of  sovereignty  itself, 
and  all  the  powers  of  autocratic  nations,  of  continental  empires 
and  kingdoms,  should  be  given  neither  to  Congress  nor  to  Presi- 
dent, but  sleep  in  the  lap  of  the  people  until  they  woke  to  further 
need. 

Lastly,  with  us  the  people  are  sovereign ;  not,  as  in  England,  the 
Parliament;  nor,  as  in  continental  countries,  the  king;  and  this  led, 
logically  and  necessarily,  to  the  invention  and  the  function  of  our 
Supreme  Court.  In  all  other  countries,  either  there  is  one  sovereign, 
or  there  are  branches  of  the  government  co-ordinate  and  of  equal 
dignity;  and  it  would  be"  presumptuous  for  the  judicial  branch  to 
question  the  acts  of  either  other.  But  in  England  we  had  the  history 
of  the  judgments  by  the  courts,  of  the  king's  own  acts,  or  those  of  his 
officers  under  his  orders.  "  What  power  the  king  hath,  he  hath  but 
by  law."  This  English  heritage,  joined  with  the  logic  of  our  Con- 
stitution, led  to  the  creation  of  our  great  tribunal.  When  a  people 
has  granted  to  its  government  only  certain  powers,  it  may  not  trust  to 
the  wisdom  of  that  government  to  judge  of  its  own  oversteps.  When 
it  has  parcelled  out  those  powers  between  Congress  and  Executive, 
between  Federal  government  and  State,  neither  branch,  neither 
forum,  may  safely  be  entrusted  to  determine  its  own  power  or  to 
limit  its  own  realm.  Therefore  the  people  said.  This  Constitution  we 
establish  for  the  government  of  our  country ;  it  shall  stand  until  we, 
the  people,  by  amendment  alter  it;  and  beside  the  Executive  and 
the  Congress  we  place  our  Supreme  Court,  which  shall  judge  matters 
arising  between  States  or  citizens  of  different  States,  or  which  involve 
any  principles  of  this  our  Constitution ;  and  the  judges  of  that  Court 
shall  be  bound  by  this  Constitution  and  its  provisions  as  against  any 

*  "Though    this    Government   pos-  power  of  both,  as  delegated,  embraces 

sesses    sovereign    power,    it    does    not  the  whole    range   of    what    might    be 

possess    all    sovereign   power;    and  so  called    sovereign    power."      James    B. 

the   State  governments,  though  sover-  Thayer,  "Legal  Essays,"  p.  203,  quot- 

eign  in   some   respects,   are  not  so  in  ing  Daniel  Webster,  in  Luther  v.  Borden, 

all.     Nor  could  it  be  shown  that  the  7  How.  1. 


CHAP.   l]  INTRODUCTORY  9 

State  or  power,  civil,  executive,  or  military,  and  as  against  the  acts 
of  their  own  representative  assembly. 

This  is  the  great  diflFerence,  the  great  distinction  of  our  Constitu- 
tion. It  is  a  commonplace  to  say  that  there  is  nothing  like  it  in 
England,  nor  indeed  elsewhere  in  the  world.  No  other  country  has 
dared  as  yet  to  grasp  the  idea  that  the  people  may  have  a  guardian 
above  the  laws  made  by  their  representatives.  INIany  countries  have 
WTitten  Constitutions,  but  in  none  can  a  statute  be  declared  void 
by  the  courts. 

And  there  is  another  important  practical  difference  between  the 
English  Constitution  and  our  own.  Theirs  in  the  main  is  composed 
of  limitations  upon  the  Executive.  Ours  limits  (what  is  to-day  far 
more  important)  the  legislative  assemblies  as  well.  In  theory  still, 
the  English  Constitution  is  a  pact  between  the  King  and  Parliament, 
which  is  sovereign  and  brooks  no  constitutional  control.  Ours  is 
the  wTitten  will  of  the  people,  who  are  with  us  sovereign,  addressed 
to  their  servants,  the  three  branches  of  government,  and  defining  and 
delimitating  their  powers  among  themselves.  Both  constitutions 
embody  the  frame  of  government;  but  in  this  the  English  is  much 
simpler,  for  it  provides  but  for  the  supremacy  of  Parliament,  the 
power  of  the  Commons  in  money  matters,  and  the  limitations  im- 
posed upon  the  king.  Even  the  Cabinet,  that  committee  of  the 
House  of  Commons  which  now  rules  the  nation,  is  not  mentioned  in 
the  English  Constitution.  But  it  was  necessary  for  our  Constitution, 
besides  setting  up  the  frame  of  government,  and  that  more  compli- 
cated and  explicit,  as  befits  a  Republic,  also  to  set  forth,  in  words  so 
exact  as  to  be  undoubted,  both  the  powers  and  the  prohibitions 
given  to  Congress  and  the  division  of  power  between  the  Federal 
government  and  the  States. 

Most  important  in  our  Constitution  to-day  is  that  portion  which  is 
not  the  frame  of  government,  but  the  liberties  of  the  people;  the  part 
most  neglected  by  historians  and  in  treatises  upon  constitutional  law. 
In  this  great  domain  the  English  and  American  Constitutions  are 
practically  identical ;  only  that  the  American  Constitutions,  Federal 
and  State,  express  in  many  words  what  the  English  Constitution  puts 
in  a  very  few,  while  of  course  the  English  restraint  upon  Parliament, 
though  equally  (some  think  more)  effective,  is  a  moral  one.  The 
growth  of  words  in  which  these  cardinal  principles  are  swathed  is 
curiously  shown  in  Book  II  of  this  work.  Besides  we  have,  in  our 
Federal  Constitution,  not  only  to  secure  these  liberties  to  the  indi- 


10  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

vitlual  as  against  the  Federal  government,  but  in  some  cases 
against  the  State  governments  as  well ;  and  our  State  Constitutions, 
which,  after  all,  with  us  are  the  charters  of  the  people's  liberties  in 
the  ordinary  relations  of  mankind,  seek  to  protect  the  individual 
also  against  the  State  Legislatures.  In  this,  indeed,  they  go  much 
too  far,  as  we  shall  later  (Chapter  XI)  discuss. 

This  branch  of  constitutional  law  forms  the  main  subject  of  this 
work.  There  are  many  political  treatises  in  which  matters  relating  to 
government,  hitherto  deemed  most  interesting  and  perhaps  most 
important,  have  been  exhaustively  treated ;  but  in  no  work  has 
attention  been  concentrated  on  those  constitutional  documents  which 
embody  the  people's  liberties;  and  in  none  is  the  Federal  with  all 
the  State  Constitutions  compared  and  brought  together.  My  last 
predecessor  in  this  attempt  (William  Smith)  wrote  in  Philadelphia 
what  he  calls  "A  View  of  the  State  and  Federal  Constitutions  Com- 
pared" in  1797.  It  fills  about  twenty-eight  pages,  and  his  attention 
is  entirely  concentrated  on  the  frame  of  government,  the  terms  of 
governors  and  judges,  and  the  methods  of  electing  them  and  the 
members  of  the  State  Legislatures.  Nothing  whatever  is  said  about 
the  Bills  of  Rights,  or  other  matters  even  such  as  the  Interstate 
Commerce  Clause,  the  clauses  limiting  State  and  Federal  legislation, 
or  the  Fifth  Amendment,  which  have  proved  to  be  of  infinitely 
greater  importance;  nor  of  course  of  those  modern  restrictions, 
relating  to  labor,  corporations,  liquor  laws,  and  the  like,  so  volumi- 
nous in  the  newer  State  constitutions. 

These  cardinal  rights  may,  for  convenience  at  least,  be  divided 
into  the  four  great  realms  of  Rights  to  Liberty,  to  Property,  to  Law, 
and  Rights  of  the  people  as  against  the  Government.  Logically  and 
historically  the  first  is  the  right  to  law,  for  there  can  be  no  property, 
no  government  and  no  real  Hberty  without  law. 


CHAP.   IlJ  THE   RIGHT   TO   LAW  11 


CHAPTER   II 

THE   RIGHT   TO   LAW 

The  Right  to  Law,  peculiar  to  the  English  people,  is  the  right  of 
any  one,  irrespective  of  rank  or  station,  to  appeal  to  the  ordinary  law 
courts  for  trial  of  any  dispute  between  him  and  any  other  person,  or 
body  of  persons,  or  even  any  officer  of  the  government.  This  applies 
as  well  to  criminal  as  to  civil  cases,  and  to  any  infringement,  by  any 
person  or  officer,  acting  under  whatever  authority,  upon  the  indi- 
vidual rights  to  liberty  and  property,  or  other  civic  rights.  In 
England,  and  with  us,  there  is  no  Administrative  Law;  no  peculiar 
corpus  juris  extending  to  the  doings  or  relations  of  government  or 
any  officer  thereof,  such  as  exists  in  all  continental  countries.  The 
notion  that  the  doings  of  the  government  itself,  or  even  of  the  king, 
in  the  person  of  any  of  his  officers,  can  be  questioned  by  any  subject 
in  the  ordinary  law  courts  —  conjoined  with  the  right  of  instant  in- 
quiry into  the  reason  or  pretext  of  the  detention  of  any  man's  person 
by  the  officers  of  government,  civil  and  military  as  well  as  judicial 
—  is  the  principal  reason  that  England  has  been  called  free.  The 
law  required  by  this  general  right,  furthermore,  must  be  the  Common 
Law  of  the  English  people.  That  is  to  say,  in  origin,  the  body  of 
their  free  customs  and  usages,  made  by  themselves,  not  by  a  king, 
and  also,  in  earliest  days,  enforced  by  themselves ;  and  furthermore 
it  must  be  the  Common  Law,  not  the  Roman  or  Civil  Law,  nor  the 
Canon  or  Church  Law,  nor  any  supposed  Administrative  Law,  or 
orders  or  decrees  of  the  king,  or  king  in  Council.  Even  chancery 
jurisdiction,  which  rests  originally  on  the  royal  power  as  wielded  by 
the  king's  chancellor  (whence  the  wi'its  of  injunction,  mandamus, 
prohibition,  etc.,  are  called  Prerogative  wi'its),  is  hardly  an  exception. 
For  many  centuries  we  find  statutes  restraining  or  limiting  chancery 
jurisdiction.  It  arose  comparatively  recently  (we  can  almost  fix  the 
time  of  the  first  use  of  equity  process,  in  matters  of  trade  and  domes- 
tic affairs  as  now  used,  at  the  time  of  Jack  Cade's  Rebellion  in  1452) 
and  as  we  all  know,  the  prejudice  against  the  injunction,  and  the 
interference  of  Chancery  courts  with  ordinary  criminal  jurisdiction 


12  THE   AMERICAN   CONSTITUTIONS  fBOOK   I 

and  the  prliK'ij)los  of  tlie  Common  Law,  has  not  yet  disappeared  (see 
Chajiter  \\).  K(|uity  therefore,  may  truly  be  said  to  be  a  modern 
growth  iij)(»n  the  body  of  the  Common  Law.  All  its  other  compet- 
itors or  intruders  were  early  got  rid  of.  Statutes  a<;ainst  the  Roman 
law  will  be  found  in  the  fourteenth  century,  while  the  ouster  of 
Canon  Law,  of  the  Church  courts,  from  their  jurisdiction  in  England, 
begins  with  the  Constitutions  of  Clarendon.  The  three  great  heads 
of  the  growth  of  the  English  Constitution,  from  the  Conquest  until 
modern  times,  are  indeed  but  the  resumption  by  the  whole  Parlia- 
ment of  its  power  to  make  laws,  by  the  Commons  of  their  power  to 
regulate  taxation,  and  by  the  people  generally  of  their  right  to  be 
tried  in  their  local  courts  by  their  neighbors  under  the  Common 
Law,  and  to  have  no  royal  officer  or  Civil  Law  or  church  tribunal 
hold  himself  above  it.  The  procedure  must  always  be  the  people's ; 
and,  since  the  time  of  Henry  II,  by  grand  and  petit  jury;  for  the 
Saxon  method  of  trial  by  ordeal  was  abolished  by  the  Lateran  Coun- 
cil in  1213,  and  about  the  same  time  the  English  got  rid  of  the 
Norman  method  of  trial  by  battle.  The  broad  principle  remained 
that  an  Englishman  could  only  be  put  in  peril  by  a  grand  jury  of  his 
neighbors,  and  definitely  condemned  or  his  property  forfeited  by 
twelve  men  of  his  peers.  It  is  true  that  the  machinery  of  the  Norman 
Inquest  was  applied  to  the  jury  system;  but  the  principle  of  the 
latter  pre-existed,  even  as  we  go  back  to  the  earlier  times  when  a 
man's  neighbors  helped  him  to  enforce  his  law,  or  the  earliest  times 
when  he  enforced  the  law  himself.  For  it  results  logically,  and  did 
result  historically,  from  the  Anglo-Saxon  conception  of  law  that  it 
might  be  enforced  by  anybody;  these  were  the  times  of  the  "un- 
written law,"  and  the  law,  like  the  moral  code,  was  supposed  to  be 
known  of  every  one  and  justified  a  man's  right  hand.  Earliest 
statutes,  therefore,  never  declared  the  law,  but  merely  defined  the 
penalties  for  its  enforcement;  just  as  the  modern  statutes  against 
trusts  add  nothing  to  the  old  common  law  except  to  define  the  pen- 
alties for  its  infringement.  In  early  English  trials,  therefore,  what 
was  tried  was  rarely  whether  the  man  did  the  deed  (it  was  usually 
admitted  or  known),  but  whether  he  was  right  in  doing  it:  that  is 
to  say,  was  he  i7i  his  law?  Was  he  acting  upon  a  state  of  facts 
whereon  the  unwritten  law  gave  the  right  of  reparation  or  vengeance 
into  his  own  hands  ?  If  not,  he  was  out  of  law,  outlaw ;  that  is,  he 
had  lost  his  right  to  law  as  against  any  one  molesting  him  in  person 
or  property. 


CHAP.    Il]  THE    RIGHT   TO   LAW  13 

As  Stubbs  remarks,  the  early  English  statutes,  before  the  Con- 
quest, are  hardly  statutes  in  the  modern  sense.  When  they  have  not 
to  do  with  matters  of  procedure,  or  penalty,  they  are  but  vague 
statements  of  the  moral  law.  The  underlying  law,  like  the  Ten 
Commandments,  is  supposed  to  be  known  of  every  one.  Written 
statutes  busied  themselves  only  with  the  amount  of  the  were,  or 
fine,  or  (for  the  first  century  after  the  Conquest)  with  the  method  of 
procedure. 

Furthermore,  the  right  to  law  involved  the  right  to  trial  by  a  man 
at  home  by  his  local  courts  according  to  his  local  customs,  originally 
by  his  neighbors.  The  jealousy  of  the  King's  judicial  power,  of  the 
Court  following  the  person  of  the  king  or  even  centralized  in  London 
to  the  exclusion  of  the  jurisdiction  of  the  county  courts,  is  shown  in 
every  constitutional  document,  beginning  with  Magna  Carta,  in  a 
long  line  of  statutes,  in  the  Declaration  of  Independence,  and  in  the 
American  Constitution. 

"The  great  original  principle  of  the  English  judicial  system  was 
that  of  trial  in  local  courts  properly  constituted  —  trial  'per  pais,  in 
the  presence  of  the  county,  as  opposed  to  a  distant  and  unknown 
tribunal."  ^  And  the  law  enforced  was  the  law  as  it  was  in  the  time 
of  Edward  the  Confessor,  —  the  customary  law  of  the  people,  not 
the  statutes  of  the  Norman  sovereign.  Thus,  in  890,  "I,  then, 
Alfred,  king,  gathered  these  (laws)  together,  and  commanded  many 
of  those  to  be  written  which  our  forefathers  held,  those  which  to  me 
seemed  good;  and  many  of  those  which  seemed  to  me  not  good  I 
rejected  them,  by  the  counsel  of  my  'witan.'  ...  I,  then,  Alfred, 
king  of  the  West  Saxons  shewed  these  to  all  my  'witan',  and  they 
then  said  that  it  seemed  good  to  them  all  to  be  holden."  ^  After  the 
Conquest  every  Norman  king  was  made  on  his  coronation  oath  to 
promise  this,  the  law  of  Edward  the  Confessor,  until  Magna  Carta; 
after  that  they  promised  to  respect  Magna  Carta  instead,  which  was 
thus  reissued  or  confirmed  thirty-two  times  in  the  eighty-two  years 
which  intervened  between  Runnymede  and  the  final  Confirmation 
of  charters  under  Edward  I.  Thus,  W^illiam  the  Conqueror  himself, 
in  his  charter  to  the  City  of  London  says,  in  Anglo  Saxon :  "And  I 
do  you  to  wit  that  I  will  that  ye  two  be  worthy  of  all  the  laws  that  ye 
were  worthy  of  in  King  Edward's  day."  ^  So  the  Domesday  Book 
records  "the  customs,"  that  is  to  say,  the  laws,  of  various  towns  and 
counties;   these  bodies  of  customs  invariably  containing  a  mere  hst 

'  Taswell-Langmead,  6th  ed.,  p.  28.         ^  Ibid.,  p.  83. 
-  Stubbs'  Charters,  p.  62. 


14  THE    AMKRICAN    CONSTITUTIONS  [cOOK    I 

of  penalties  for  the  hreacli  of  tlie  established  law,  while  later  charters 
usually  give  the  inhabitants  of  a  town  all  the  customs  and  free  privi- 
leges enjoyed  by  the  citizens  of  Lonilon.  In  1100  Henry  1  in  his 
Charter  of  Liberties  promises  in  the  first  section  relief  to  the  king- 
dom of  England  from  all  the  evil  customs  whereby  it  had  lately  been 
oppressed,  and  finally  i-eturns  to  the  people  the  law  of  Edward  the 
Confessor  "with  such  emendations  as  my  father  made  with  the  con- 
sent of  his  barons."  '  In  his  charter  to  the  citizens  of  London  -  he 
promises  general  freedom  from  feudal  taxes  and  impositions,  from 
dane-geld,  and  from  the  fine  for  the  murder  of  a  Norman ;  and  the 
Charter  of  Liberties  issued  by  Henry  H  in  1154  confirms  their 
"liberties  and  free  customs  to  all  men  in  the  kingdom."  ^  In  Magna 
Carta  the  right  to  law  is  of  course  primarily  guaranteed  in  Cap.  39, 
that  no  freeman  is  to  be  molested  except  "by  the  law  of  the  land"; 
also  by  Cap.  24,  prohibiting  minor  royal  officers  from  trying  criminal 
cases;  and  Cap.  13,  which  extends  the  ancient  liberties  and  the  free 
customs  of  the  citizens  of  London  as  well  by  land  as  by  sea  to  all 
other  cities,  burghs,  towns,  and  ports  in  the  realm  as  to  their  own 
law.  In  1309  (see  Historical  Digest)  we  already  find  a  statute  re- 
straining chancery  jurisdiction  and  forbidding  arrest,  conviction,  or 
forfeiture  without  a  jury,  a  principle  only  recently  revived  in  the 
Constitution  of  Oklahoma;*  in  1331  a  statute  against  invasion  of 
common  law  jurisdiction  by  the  chancellor ;  in  1383  a  protest  against 
Roman  law  and  a  definite  prohibition  of  it  to  the  courts  of  England; 
in  1391,  no  man  is  to  be  compelled  to  answer  before  a  Lord  (of  mat- 
ters determinable  at  common  law),  and  there  is  another  statute  limit- 
ing admiralty  jurisdiction  and  again  prohibiting  the  Roman  law. 
In  1406  the  House  of  Commons  present  their  Petition  of  thirty-one 
articles,  of  which  the  tenth  provides  that  the  Council  should  de- 
termine nothing  cognizable  at  common  law  unless  by  the  advice  of 
the  judges ;  and  other  clauses  are  that  all  officers  shall  personally  per- 
form their  duties  ^  and  be  sworn  to  observe  "the  common  law  of  the 
land";  but  in  1452,  after  Jack  Cade's  Rebellion,  the  Act  31  Henry 
VI,  C.  2,  provides  that  in  case  of  riots  or  disorder  an  offender  may 
be  commanded  to  appear  in  Chancery  and,  if  he  disobey,  the  chan- 
cellor may  issue  writs  of  proclamation  to  appear  within  one  month 
or  suffer  forfeiture  or  outlawry ;  and  although  this  statute  continued 

1  Stubbs'  Charters,  p.  101   (clause        *  See  Book  III.,  §§  650,  662. 

13).  *  Forthis  principle  in  modern  Ameri- 

^  Ibid.,  p.  108.  can  State  Constitutions,  see  Book  III, 

«  Ibid.,  p.  135.  §  215. 


CHAP.    Il]  THE   RIGHT   TO   LAW  15 

only  seven  years,  its  principle  remained  and  is  the  historical  orif^fin 
of  the  use  of  the  injunction  process  to  prevent  disorder  or  crime  (see 
Chapter  IV).  So,  in  1487,  a  statute  of  Henry  VII  gives  special  au- 
thority to  the  Court  of  Star  Chamber  over  riots  and  disorders.  But 
the  abuse  of  the  royal  prerogative  continued  under  the  Tudors  and 
Stuarts,  until  the  Petition  of  Right  in  1627  complains  (Article  3) 
that  although  it  is  declared  (c|uoting  Magna  Carta)  that  no  man  be 
imprisoned  nor  put  out  of  his  freehold,  nor  franchises,  nor  free  cus- 
toms unless  it  be  by  the  law  of  the  land,  and  established  that  from 
thenceforth  none  shall  be  taken  by  petition  or  suggestion  made  to 
the  king  or  his  Council  unless  it  be  by  indictment  or  presentment  of 
good  and  lawful  people  of  the  same  neighborhood  or  by  process  by 
wi'it  originally  at  the  common  law,  and  no  one  shall  be  forejudged 
but  by  the  courts  of  the  law,  nevertheless  of  late  times  divers  com- 
missions have  issued  giving  authority  to  proceed  under  martial  law 
whereby  (§  8)  some  have  been  put  to  death  when  and  where  if  by 
the  laws  and  statutes  of  the  land  they  had  deserved  death,  by  the 
same  laws  and  by  no  other  they  ought  to  have  been  judged.  And 
finally,  the  long  history  of  invasion  of  the  common  law  is  closed  by 
the  entire  abolition  at  the  hands  of  the  Long  Parliament  of  the  Star 
Chamber  and  of  all  but  common-law  courts.  After  the  Revolution, 
the  Bill  of  Rights  complains  that  James  II  endeavored  to  subvert 
the  laws  and  liberties  of  the  kingdom,  among  other  things  by  issuing 
a  commission  for  a  court  to  be  called  "The  Court  of  Com- 
missioners" (clause  3),  and  (Part  II,  clause  3)  that  both  this  com- 
mission and  all  other  commissions  and  courts  of  like  nature  are  illegal 
and  pernicious.  The  right  to  the  common  law  exclusively  was  too 
well  established  to  need  much  expression  in  the  Federal  Constitution, 
but  the  Declaration  of  Independence  complains  (clause  17)  that 
George  III  "  has  combined  with  others  to  subject  us  to  a  jurisdiction 
foreign  to  our  Constitution  and  unacknowledged  by  our  laws,"  and 
(clause  24)  arraigns  him  for  "abolishing  the  free  system  of  English 
laws  in  a  neighbouring  province,  establishing  therein  an  arbitrary 
government."  The  Federal  Constitution  recognizes  the  principle 
in  the  seventh  Amendment  of  the  ten  which  are  our  national  Bill 
of  Rights,  providing  for  suits  at  common  law  and  trial  by  a  jury, 
and  that  no  fact  so  tried  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States  than  according  to  the  rules  of  the  common 
law;  while  many  State  Constitutions  declare  the  people  entitled  to 
the  common  law  of  England.^ 

»  See  Book  III,  §  76,  and  note  6, 


16  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

The  equal  right  to  law  was  cstabHshed  as  early  as  the  Charter  of 
Liberties  of  Henry  II,  and  extended  not  only  to  the  barons  but  to  all 
persons  except  actual  slaves;  for  even  the  villeins  had  full  law 
rights.  Magna  Carta  recognizes  the  principle  of  equality  in  Caps. 
30,  and  in  40,  —  "To  none  will  we  sell,  to  none  will  we  deny  right  or 
justice,"  and  in  the  preamble  conceding  these  liberties  also  "To  all 
free  men  of  our  kingdom,"  and  expressly  in  Cap.  GO,  extending  all 
the  foregoing  customs  and  liberties  not  only  to  the  king's  tenants, 
but  they  are  to  be  observed  by  all  others,  both  clergy  and  laity,  and 
in  Cap.  65  (omitted  by  Henry  III)  granting  the  aforesaid  liberties  to 
all  men.  "By  1485,"  says  Hallam,  "the  principle  that  all  officers, 
administrators,  or  soldiers  are  liable  at  the  common  law  for  their 
acts,  that  is,  the  prohibition  of  the  continental  Administrative  Law, 
had  been  fully  established  " ;  while  in  1566  Speaker  Onslow  tells 
Elizabeth  herself  that  she  is  subject  to  the  common  law.  So  in  the 
Massachusetts  Body  of  Liberties,  clause  2,  the  same  justice  and 
law  is  extended  to  every  one,  whether  an  inhabitant  or  a  foreigner ;  ^ 
and  in  the  Declaration  of  Independence  appears  the  famous  state- 
ment that  "All  men  are  created  equal,"  thus  extending  the  prin- 
ciple established  under  Henry  II,  six  hundred  years  before,  that 
they  are  only  equal  before  the  law. 

What  is  due  process  of  law  will  be  discussed  later  more  particu- 
larly. It  is  particularly  notable  that  the  words  of  Magna  Carta, 
"legal  judgment  of  his  peers  or  the  law  of  the  land,"  are,  in  the 
Statute  of  28  Edward  III  replaced  by  the  words  "due  process  of  the 
law,"  and  the  Petition  of  Right  (Article  4)  quotes  the  provision  in 
the  same  words.  It  is  probable  that  historically  the  words  are 
synonymous;  that  is,  "the  law  of  the  land"  means  by  indictment 
and  procedure  at  the  common  law,  and  "judgment  of  his  peers" 
trial  by  jury,  while  "due  process"  includes  both.  There  is  still  a 
feeling  that  the  words  "due  process  of  law"  will  not  justify  prosecu- 
tion by  information  or  in  any  other  manner  than  a  common  law 
indictment  or  trial  except  by  jury.^  The  Supreme  Court  of  the 
United  States  has,  however,  held  that  "due  process  of  law"  does 
not  necessarily  include  trial  by  jury  or,  in  certain  cases,  any  court 
trial.  The  principle  is  embodied  in  the  Fifth  Amendment  nearly 
in  the  words  of   the  Statute  of  Westminster,  "No  person  shall  be 

'  See  Book  II,  Constitutional  Prin-  *  See  the  recent  amendment  to  the 
ciples.  Wisconsin     Constitution,     Book     III, 

§  127,  and  §  130,  note  10. 


CHAP.  Il]  THE   RIGHT   TO   LAW  17 

deprived  of  life,  liberty,  or  property  without  due  process  of  law," 
and  in  the  Fourteenth  Amendment  is  required,  in  the  same  words, 
by  the  Federal  Government  of  the  States.  It  exists  in  this 
language  in  New  York  and  in  the  newer  States  copying  the 
Federal  Constitution,  but  still  stands  in  the  words  of  Magna  Carta 
in  New  England  and  the  older  States.^  Finally,  the  principle  that 
this  common  law  under  due  process  must  be  afforded  to  every  per- 
son in  his  home  or  in  local  courts  is  expressed  in  Magna  Carta, 
Cap.  1 7  in  the  exact  terms  demanded  by  the  barons  (clause  8  of  the 
barons'  demands),^  that  common  pleas  shall  not  follow  the  King's 
Court,  but  be  assigned  or  held  in  some  certain  place;  in  Cap.  18, 
that  recognitions  shall  only  be  held  in  the  court  of  the  county  where 
the  lands  lie  and  that  the  king  shall  send  two  justices  into  each 
county  four  times  a  year  to  hold  assizes  where,  if  all  matters  cannot 
be  tried  on  the  day  appointed,  a  sufficient  number  of  knights  and  free- 
holders present  at  the  assizes  shall  stay  to  decide  them.  It  is  fur- 
ther especially  provided  that  the  writ  prcccipe  (Cap.  34)  shall  not  in 
effect  be  issued  so  as  to  cause  a  freeman  to  lose  his  court;  and  this 
is  also  the  exact  words  of  the  barons  (clause  24),  the  object  being  to 
protect  the  local  jurisdiction  against  the  royal  courts ;  and  in  Cap.  45, 
"  justices  .  .  .  shall  only  be  appointed  of  such  as  know  the  law  and 
mean  duly  to  observe  it,"  —  also  taken  literally  from  the  barons' 
request ;  the  meaning  being  to  require  local  common  law  courts  held 
by  common  law  judges  and  allow  no  other  jurisdiction.  So  in  1391 
the  law  above  quoted  preserving  the  common  law  as  against  a  Lord's 
courts;  while  by  1485  Hallam  mentions  as  one  of  the  six  liberties 
now  established  the  right  to  be  tried  by  a  jury  of  the  county.  In  the 
Declaration  of  Independence  the  twenty-third  clause  complains  of 
the  king's  "transporting  us  beyond  seas  to  be  tried  for  pretended 
offences"  and  the  Virginia  Bill  of  Rights  (clause  8)  provides  for 
trial  in  the  vicinage.  The  principle  is  preserved  in  the  Federal  Con- 
sitution.  Art.  3,  §  2,  requiring  all  trials  to  be  held  in  the  State  where 
the  crime  is  committed ;  and  so  in  most  of  the  States.^  The  same 
principles  are  true  of  civil  cases.  Cap.  40  of  Magna  Carta  applies 
to  civil  as  well  as  criminal  matters,  slightly  expanding  the  demand 
of  the  Barons  (clause  30)  "that  justice  shall  not  be  sold  nor  deferred 
nor  forbidden" ;  and  the  clause  is  adopted  in  almost  the  same  words 
in  all  the  State  Constitutions.* 

»  See  Chapter  III,  infra;  Book  III,         «  See  Book  III,  §  133, 
§  130.  *  Ibid.,  §§  70,  73,  79. 

^  Printed  in  Stubbs'  Charters. 


13  THE   AMERICAN    CONSTITUTIONS  [BOOK   I 


CHAPTER   III 

THE   RIGHT   OF   LIBERTY 

Civic  liberty,  as  understood  and  enjoyed  by  the  English  people, 
has,  like  the  right  to  law,  important  differences  from  the  conception 
held  in  other  countries.  For  the  right  to  have  one's  person  free  of 
arrest,  detention,  or  control  applies  as  well  to  the  government,  the 
actions  of  officers  of  the  courts  of  law,  as  to  the  trespass  of  any  fellow- 
citizen;  and  the  right  of  liberty  in  trade  or  industry  involves  the 
notion  of  protection  from  any  monopoly  or  any  privilege  even  if 
granted  by  the  State,  as  well  as  from  any  combination  of  guilds  or 
other  workmen.  Moreover,  the  right  is  guarded  by  the  great  insti- 
tutions of  trial  by  jury  and  habeas  corpus;  the  former  of  which 
indeed  has  lately  been  copied  in  continental  countries,  but  the 
latter,  so  far  as  I  am  informed,  not  even  yet.  There  is  on  the  Con- 
tinent nothing  corresponding  to  the  constitutional  right  of  any  in- 
dividual when  arrested  by  an  officer  of  government  to  demand 
instant  information  of  the  cause  of  his  arrest  and  to  be  set  at  large 
unless  indicted  by  a  grand  jury  for  a  crime  not  bailable  or  for  wliich 
the  person  accused  is  unable  to  give  satisfactory  bail. 

The  right  of  personal  liberty  includes,  therefore,  the  right  to  life, 
that  is,  the  right  not  to  be  deprived  of  life  except  under  a  general 
law  of  the  land  previously  made,  the  facts  to  be  found  by  a  jury 
(Magna  Carta,  Cap.  39);  and  the  right  to  liberty  of  the  person, 
that  is,  freedom  of  bodily  restraint  either  by  imprisonment,  deten- 
tion, or  the  being  refused  locomotion  to  any  place  desired,  even  to 
the  extent  of  leaving  the  kingdom.  In  this  country  this  right  has 
been  found  by  the  Supreme  Court  to  involve  the  constitutional  right 
to  move  from  one  State  to  another  free  of  tax  or  hindrance,'  and  this 
is  expressly  decided  not  to  rest  upon  the  Interstate  Commerce 
clause,  but  upon  the  right  to  personal  liberty  of  the  American  citi- 
zen.   On  the  other  hand  it  involves  the  right  not  to  be  banished  even 

>  Crandall  v.  Nevada,  6  Wall.  39. 


CHAP.   Ill]  THE   RIGHT   OF  LIBERTY  19 

for  crime,  presumably,  therefore,  not  to  be  banished  even  from  a 
State  of  the  Union.* 

The  right  to  personal  liberty  is  guarded  by  the  writ  of  habeas 
corpus,  preceded  by  the  writ  de  odio  et  atia  referred  to  in  Cap.  3G  of 
Magna  Carta:  "Nothing  shall  be  given  or  demanded  of  another 
for  the  wTit  of  inquisition  of  life  or  limb,  but  it  shall  be  given  gratis 
and  never  denied."  The  right  to  be  informed  at  once  upon  arrest 
of  the  nature  and  cause  of  the  accusation  is  a  different  and  indepen- 
dent constitutional  right  from  that  to  a  grand  jury  or  the  process  of 
indictment;  although  many  State  Constitutions  confound  the  two. 
The  right  to  be  informed  of  the  nature  and  cause  of  the  accusation  ^ 
is  instantaneous  upon  arrest,  or  at  least  arises  as  soon  as  the  accused 
is  brought  before  a  magistrate.  The  requirement  that  the  person 
accused  or  arrested  can  only  be  tried  on  a  finding  of  a  body  of  twenty- 
tliree  men,  the  grand  jury,  antedates  the  petit  jury,  going  back  to  the 
time  when  the  trial  of  facts  was  by  ordeal.  The  English  people  per- 
sistently struggled  for  many  years  after  the  Conquest  to  have  this 
the  only  method  of  accusation ;  the  practice  of  beginning  a  criminal 
suit  by  information  to  the  king  or  to  a  Crown  officer,  obviously 
Norman  in  origin,  was  obnoxious  to  the  people ;  it  cannot,  however, 
be  said  that  it  was  not  finally  established,  though  many  of  the  Ameri- 
can State  Constitutions  evidently  contemplate  that  procedure  by 
information  is  not  "due  process  of  law."  Some  of  the  western 
States,  however,  have  shown  a  tendency  to  do  away  with  the  grand 
jury  and  use  the  process  of  information  exclusively.^ 

There  were  twenty-five  thousand  slaves  in  England  at  the  Domes- 
day Book,*  probably  the  result  of  earlier  conquest  or  punishment, 
possibly  of  voluntary  sale;  but  they  soon  disappeared,  either  by 
exercising  a  trade  (see  Chapter  V)  or  by  acquiring  land,  just  as 
under  the  Dawes  Act  the  allotment  of  land  in  severalty  makes  an 
Indian  a  United  States  citizen.  Villeins  were  not  regarded  as 
slaves  under  the  law;  and  they  also  disappeared,  largely  as  a  conse- 
quence of  the  rebellions  of  Jack  Cade  and  Wat  Tyler,  which  suc- 
cessfully established  their  right  to  land  in  severalty  and  to  be  paid 
money  wages.     Subject  to  this  exception  the  right  to  liberty  was 

*  The  word  "Banishment"  is  used  however,  granted  by  a  State  governor 

in  the  sense  of  compulsory  transpor-  on   condition  that   the   offender  leave 

tation  beyond  the  limits  of  the  British  the  State  might  possibly  be  upheld. 
Empire.     In  early  days  it  was  defined         ^  See  Book  III,  §  120,  notes, 
to   mean   not    beyond    the   four   seas,         ^  See  Book  III,  §  127. 
Tangier   and   the  Islands.     A  pardon,         *  Taswell-Langmead,  p.  18. 


20  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

general  in  England  from  the  earliest  times.  Henry  VIII  even,  in 
1514,  manumits  two  villeins,  using  the  words  of  the  Declaration  of 
Independence,  "Whereas  God  created  all  men  free." 

The  Statute  of  Westminster  I,  1275,  again  refers  to  the  writ 
de  odio  et  alia,  and  the  Statute  of  Edward  III,  1354,  in  quoting 
Cap.  39  of  jNIagna  Carta,  also  says  that  "  no  man  of  what  estate  or 
condition  that  he  be  shall  be  .  .  .  imprisoned  nor  disinherited, 
nor  put  to  death  without  being  brought  in  answer  by  due  process 
of  law,"  expressing  for  the  first  time  that  there  must  not  only  be 
lawful  trial,  but  that  the  person  accused  must  be  present;  and 
chapter  9  of  the  same  Statute  forbids  the  sheriffs  by  virtue  of 
commissions  and  general  writs  to  take  inquest  to  cause  to  indict 
the  people  at  their  will,  —  expressly,  therefore,  providing  for 
indictments. 

"By  1485,"  says  Hallam,  "the  right  not  to  be  imprisoned  without 
warrant"  was  established;  and  in  1G17  we  find  the  last  legislation 
concerning  villeinage.  During  these  centuries,  however,  there  had 
been  a  persistent  effort  by  all  the  kings  to  avoid  the  writ  of  habeas 
corpus,  to  arrest  people  without  warrant  or  indictment,  detain  them 
without  cause  or  trial,  try  them  without  a  jury,  or  punish  them  by 
martial  law.  Finally,  in  the  petition  of  Right  (clause  5)  the  Parlia- 
ment complains  of  this  and  that  when  they  were  brought  up  on 
habeas  corpus  they  were  still  detained,  without  cause  certified,  by 
the  king's  special  command;  and  in  clause  10  they  pray  that  no 
free  man  in  such  any  manner  be  imprisoned  or  detained.  Fourteen 
years  later  the  Massachusetts  Body  of  Liberties  (Preamble)  defines 
the  denial  of  liberty  to  be  the  ruin  of  the  Commonwealth,  and  first 
definitely  adds  to  the  principles  above  stated,  that  no  person  can 
be  deprived  of  liberty  or  property  or  reputation  unless  by  some  ex- 
press law  of  the  country,  i.  e.,  a  general  law  warranting  the  same, 
established  by  a  legislature,  and  sufficiently  published ;  and  (clause 
18)  "No  man's  person  shall  be  restrained  or  imprisoned  by  any 
authority  whatsoever,  before  the  law  hath  sentenced  him  thereto,  if 
he  can  put  in  sufficient  security,  bail,  or  mainprise  for  his  appearance, 
and  good  behavior  in  the  mean  time,  unless  it  be  in  crimes  capital, 
and  contempts  in  open  court,  and  in  such  cases  where  some  express 
act  of  court  doth  allow  it."  This  was  enacted  nearly  forty  years 
before  the  Habeas  Corpus  Act,  in  1679,  first  cured  the  defect  in  the 
writ  by  providing  against  delay  and  for  bail,  and  extending  the 
number  of  judges  who  are  required  to  grant  the  writ;  and  still 


CHAP.    Ill]  THE   RIGHT    OF   LIBERTY  21 

later  the  English  Bill  of  Rights,  prohibiting  excessive  bail,  and  a 
statute  providing  that  it  should  apply  as  well  to  commitment  upon 
civil  as  criminal  cases;  which  is  followed  generally  in  American 
constitutions/ 

The  Massachusetts  Body  of  Liberties  (clause  17)  provides  for 
liberty  to  remove  from  the  Commonwealth,  and  (clause  91 )  that 
there  shall  never  be  any  bond  slavery,  villeinage,  or  captivitv, 
unless  lawful  captives  or  such  strangers  as  willingly  sell  themselves. 
Massachusetts,  however,  departed  from  this  principle  later,  and  a 
few  slaves  existed  as  late  as  the  Revolution,  when  the  Massachusetts; 
Constitution  in  its  Bill  of  Rights,  Article  1,  put  an  end  to  it  by  de- 
claring that  all  men  are  born  free  and  have  inalienable  right  toi 
liberty;  so,  the  Declaration  of  Independence,  clause  2,  and  the 
Virginia  Bill  of  Rights  (§1),  but  this  was  believed  not  to  apply  to 
negroes. 

The  objection  to  information  or  proceedings  other  than  indictment 
is  also  foreshadowed  in  Magna  Carta,  Cap.  38,  that  no  one  shall  be 
put  to  his  law,  that  is,  trial,  by  ordeal  or  otherwise,  upon  the  bare 
saying  of  a  bailiff  (prosecuting  officer),  without  credible  witnesses  to 
prove  it,  and  by  1354  indictments  are  expressly  required.  The 
modern  law  of  the  English  Constitution  on  this  point  is  first  fully 
expressed  in  the  Virginia  Bill  of  Rights,  clause  8,  that  "in  all  .  .  . 
criminal  prosecutions  a  man  hath  a  right  to  demand  the  cause  and 
nature  of  his  accusation,  to  be  confronted  with  the  accusers  and 
witnesses,  to  call  for  evidence  in  his  favor  '  and  to  a  speedy  trial  by 
an  impartial  jury  of  his  vicinage  without  whose  unanimous  consent 
he  cannot  be  found  guilty,"  anticipating  exactly  the  words  of  Hallam 
above  quoted  as  early  established  in  England. 

Whatever  may  be  the  meaning  of  due  process  of  law,  there  is  no 
doubt  that  the  words  "judgment  by  his  peers,"  in  the  great  clause  in 
Magna  Carta,  means  trial  by  jury,  or  w4iat  then  corresponded  to  it ; 
and  the  reading  of  the  clause  developed  with  the  growth  of  the  insti- 
tution to  make  our  modern  understanding  that  it  must  be  a  unani- 
mous verdict  of  twelve  who  are  not  witnesses  of  the  crime  accused.^ 
The  Statute  of  Wales  (1284)  already  provides  a  complete  code  of 
procedure  with  jury  trial ;  but  the  system  of  punishing  juries  for  a 
wrong  verdict  by  attaint  existed  until  1670,  and  only  at  that  time 

»  Va.  B.  Rts.  9;  U.  S.  C.  Amt.  VIII.  English  Constitution.  See  Book  III, 
See  Book  III,  §  122.  §  135.  note  6. 

'  This  right  is  not  expressed  in  the        *  See  §  131,  note  4. 


22  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

was  finally  established  their  right  to  be  judge  of  all  the  facts,  a  right 
extended  in  many  of  our  State  Constitutions  to  the  law  as  well  as  to 
the  facts,  conjoined  with  a  prohibition  to  judges  to  charge  the  jury 
on  the  facts  or  even  to  state  them.' 

The  Virginia  Bill  of  Rights  requires  a  jury  in  criminal  cases,  and 
holds  it  preferable  to  any  other  mode  of  trial  in  civil  suits;  the 
Declaration  of  Independence  complains  of  the  deprivation  of  trial 
by  jury.  There  has  been  no  further  development  of  the  principle 
except  in  the  direction  of  allowing  verdicts  by  a  smaller  number  than 
twelve,  or,  in  civil  cases,  not  unanimous." 

The  provision  against  excessive  bail,  as  has  been  said,  dates  only 
from  the  Bill  of  Rights.  That  against  cruel  or  unusual  punishments 
as  well  as  excessive  fines  goes  even  back  to  Magna  Carta,  Cap.  20, 
providing  that  a  free  man  shall  only  be  fined  for  a  small  offence  after 
the  manner  of  the  offence,  for  a  great  crime,  according  to  the  heinous- 
ness  of  it,  saving  to  him  his  contenement;  that  is  to  say,  his  necessary 
tools  of  trade.  The  former  provision  is  found  in  all  our  State 
Constitutions  as  well  as  the  Federal ;  ^  and  the  latter  in  many,  *  and 
probably  always  by  statute  if  not  at  the  common  law.  Banishment 
was  early  held  an  unusual  punishment,  and  there  was  probably 
never  any  legal  torture  in  England,  though  once  or  twice  the  rack 
was  introduced.  The  Massachusetts  Body  of  Liberties,  however 
(clause  43),  says  that  no  man  shall  be  beaten  with  above  forty 
stripes  nor  shall  any  true  gentleman  nor  any  man  equal  to  a  gen- 
tleman be  punished  with  whipping,  etc.;  and  clause  45,  "no  man 
shall  be  forced  by  torture  to  confess  any  crime  .  .  .  unless  in  some 
capital  cases  where  he  is  first  fully  convicted,  after  which  if  the 
cause  be  of  that  nature  that  it  is  very  apparent  there  be  other  con- 
spirators or  confederates  with  him,  then  he  may  be  tortured,  yet  not 
with  such  tortures  as  be  barbarous  or  inhuman  " ;  and  in  clause  46, 
the  usual  constitutional  provision  is  anticipated  for  bodily  punish- 
ments, —  "we  allow  amongst  us  none  that  are  inhuman,  barbarous 
or  cruel,"  thus  anticipating  the  provision  of  the  Bill  of  Rights, 
clause  10,  that  excessive  bail  ought  not  to  be  required  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted,  copied 
in  the  Virginia  Bill  of  Rights,  §  9;  in  the  Federal  Constitution,  both 
as  to  the  States  and  the  nation ;  and  in  all  the  State  Constitutions.^ 

1  See  §  675.  *  Ibid.,  §§  81,  331. 

'  See  Book  III,  §§  72,  132.  «  Ibid.,  §§  122,  140. 

»  Ibid.,  §  140. 


CHAP.    Ill]  THE   rJGHT    OF   LIBERTY  23 

The  only  exception  to  this  common-law  right  to  personal  liberty 
and  court  trial  (except  that  exercised  under  chancery  jurisdiction 
discussed  in  Chapter  IV)  is  the  practice  of  finding  a  man  guilty  of 
a  criminal  offence,  usually,  but  not  necessarily,  treason,  by  a  bill  of 
attainder;  that  is,  a  legislative  act  of  the  Houses  of  Parliament  de- 
claring the  person  guilty  without  trial  and  even  in  his  absence.  This 
practice  was  freely  employed  by  the  Tudors  and  Stuarts  especially 
under  Henry  VHL*  It  has  never  been  declared  unconstitutional  in 
England,  though  the  abuse  was  so  well  known  to  our  ancestors  that 
they  expressly  put  it  in  the  Federal  Constitution  as  applied  to  the 
nation  and  to  the  States  as  well."  This  has  been  followed  in  nearly 
all  the  State  Constitutions.^ 

Some  of  the  State  Constitutions  forbid  imprisonment  for  debt  in 
civil  cases,  a  principle  first  embodied  in  the  INIassachusetts  Bcdy  of 
Liberties,  clause  33,  providing  that  no  man  should  be  imprisoned 
for  debt  if  the  law  could  find  competent  means  of  satisfaction  other- 
wise from  his  estate.  The  Body  of  Liberties  also  anticipates  the 
modern  right  to  counsel  (clause  26),  which,  as  a  constitutional  right, 
does  not  yet  exist  in  England,^  and  (clause  47)  requires  two  witnesses 
in  capital  cases. 

Finally,  the  right  not  to  be  placed  twice  in  jeopardy  goes  back 
also  for  its  first  clear  expression  to  the  Massachusetts  Body  of  Lib- 
erties, which  gave  many  principles  both  to  later  English  constitu- 
tional documents  and  to  the  Federal  and  State  Bills  of  Rights. 
Clause  42  reads:  "No  man  shall  be  twice  sentenced  by  civil  justice 
for  one  and  the  same  crime,  offence,  or  trespass."  The  Habeas 
Corpus  Act  forty  years  later  provided  that  no  person  once  delivered 
by  habeas  corpus  should  be  recommitted  for  the  same  offence.  And 
while  the  Fifth  Amendment  to  the  Federal  Constitution  only  pro\ades 
that  no  person  shall  be  subject  for  the  same  offence  to  be  twice  in 
jeopardy  of  life  or  limb,  thereby  limiting  the  principle  to  capital 
cases,  many  of  the  State  Constitutions  extend  it  to  any  criminal 
prosecution  for  which  the  punishment  may  be  imprisonment.^ 

'  See  §  138,  note  10.  ■•  See  §  134,  note  17. 

2  Art.  I,  §  9,  (3);  Art.  I,  §  10  (1).  «  See  Book  III,  §  137,  notes. 

»  See  Book  III,  §  138. 


24  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 


CHAPTER   IV 

CHANCERY   AND   THE    INJUNCTION   ORDER 

The  common  law  sounds  in  damages.  In  early  times  it  was  en- 
forced, civil  and  criminal,  only  by  a  money  penalty;  or  by  personal 
redress  or  vengeance.  Thus,  the  earliest  codes  or  statutes  merely 
fix  a  scale  of  penalties.  The  notion  of  compelling  a  freeman  to  do 
something  or  to  abstain  from  doing  something  was  foreign  to  Anglo- 
Saxon  ideas  of  liberty.  Like  the  doctrine  of  free  will  carried  to  its 
extreme,  a  freeman  was  lord  of  his  own  acts;  only  liable  for  the 
consequences  of  the  same,  to  the  person  injured;  later  only  to  the 
Crown  if  a  criminal  act,  and  to  the  individual  injured  if  a  private 
wrong.  Even  when  the  judgment  of  the  court  went  against  him,  the 
defendant  was  never  compelled  to  do  a  thing,  or  even,  in  ordinary 
cases,  to  make  restitution,  as  in  the  Oriental  system  of  rendering 
justice.  This  principle  must  never  be  lost  sight  of,  for  it  explains 
many  things  both  in  local  history  and  in  popular  prejudice.  Prob- 
ably the  power  of  the  chancellor  to  issue  injunction  writs  went  as  far 
towards  prejudicing  our  ancestors  against  the  courts  of  chancery 
and  Star  Chamber  (which  was  merely  its  criminal  side)  as  the  absence 
of  the  jury  and  the  local  county  court.  Repeated  attempts  to  limit  or 
do  away  with  this  jurisdiction  are  found  in  the  Statutes  of  the  Realm, 
and  the  general  prejudice  against  Chancery  courts  came  to  our 
ancestors  by  direct  inheritance.  As  is  known,  some  States,  notably 
Massachusetts,  for  some  time  withheld  chancery  jurisdiction  entirely, 
and  when  adopted  it  was  in  a  limited  and  tentative  way.  On  the 
other  hand  Congress,  for  the  Federal  courts,  adopted  the  full 
English  practice  in  the  first  judiciary  act;^  Art.  Ill,  §  2  of  the 
Constitution  expressly  provides  that  the  Federal  judicial  power 
shall   extend   to   all  cases,  in  law  and   equity. 

1  Act  of  Sept.  20,  1789  c.  20  §  11.  of  Chancery  in  England ;  and  so  to-day, 

By  Rule  XXXIII  of  the  first  (1822)  where    applicable,    by   its    "present" 

Rules  of  Practice,  equity  practice    is  practice, 
regulated   by  that  of  the  High  Court 


CHAP.    IV]  CHANCERY   AND   THE   INJUNCTION   ORDER  25 

The  use  of  the  injunction  to  quell  disorder  or  control  the  action 
of  large  bodies  of  men,  with  the  vigorous  use  of  contempt  process, 
to  an  even  greater  extent,  stirs  public  opinion  to-day,  though  it  also 
has  very  early  precedents  going  back,  like  chancery  jurisdiction 
itself,  to  the  first  century  after  the  Conquest.  It  was  used  in  early 
times  to  quell  disorder ;  but  its  use  to  control  the  action  of  bodies  of 
men  in  labor  disputes  may  be  said  to  date  from  the  case  of  Spring 
Head  Spinning  Co.  v.  Riley,  decided  in  1SG8  (L.  R.  6  Eq.  551). 
The  principle  of  this  case  has  had  vast  extension  in  the  United 
States,  due  not  only  to  the  prevalence  of  labor  disputes  and  the 
activitv  of  orranized  labor,  but  still  more  to  the  inefficiencv  in  many 
parts  of  the  country  of  the  local  courts  and  of  the  State  police ;  and 
most  of  all  to  our  State  and  Federal  system  and  the  fact  that  the 
Constitution  gives  the  Federal  courts  jurisdiction  for  suits  between 
citizens  of  different  States,  as  railroad,  mining  and  manufacturing 
industry  is  with  us  almost  entirely  carried  on  by  corporations.  Fre- 
quently chartered  in  other  States  than  where  the  trouble  occurred, 
it  was  a  convenient  thing  for  the  corporation  which  feared  prejudice 
in  the  local  courts,  or  distrusted  their  strength  or  the  strength  of  the 
local  police  to  enforce  their  orders,  to  go  into  the  Federal  courts  and 
obtain  injunctions  for  the  enforcement  of  which  they  could,  in  last 
resort,  depend  upon  the  entire  military  force  of  the  United  States. 

English  notions  of  liberty,  it  is  true,  resisted  the  chancellor's  power 
in  its  most  dangerous  path ;  that  is  to  say,  in  applying  the  doctrine 
of  specific  performance  to  the  contract  of  labor;  though  we  see  an 
effort  to  arrive  at  the  same  result  in  the  so-called  "peonage  laws" 
in  the  south,  as  well  as  in  recent  injunctive  orders  or  mandatory 
injunctions  of  Federal  and  other  courts  ordering  a  man  or  bodies  of 
men  not  to  quit  work.  Specific  performance  of  a  contract  to  render 
services,  like  a  contract  for  indefinite  or  long  term  service,  too  much 
resembled  slavery  to  be  tolerated  at  the  common  law.  And  indeed 
contracts  to  do  work  "in  gross,"  piece-work,  not  paid  by  the  day, 
had  to  be  expressly  authorized  by  a  statute  of  Edward  III  (1360). 
Nevertheless,  statutes  requiring  a  man  to  labor  at  some  work  con- 
tinued for  several  centuries. 

Bearing  in  mind  firmly  the  principle  that  the  English  law  sounds 
only  in  damages,  and  that  the  notion  of  ordering  or  even  forbidding 
any  act  (except  under  a  criminal  statute)  is  utterly  foreign  to  its 
system ;  and  the  cardinal  principle  that  no  fact  can  be  found  without 
the  intervention  of  the  petit  jury;  we  shall  be  able  to  understand 


26  THE   AMERICAN   CONSTITUTIONS  [bOOK   I 

both  tlie  historical  reason  and  tlie  present  meaning  of  the  objection 
of  the  American  people  to  the  injunctive  powers  of  chancery  and 
the  ex  parte  sentences  for  contempt  made  by  the  judge  who  issued 
the  injunction  and  upon  the  facts  as  found  by  him  showing  the  in- 
fringement of  the  same.  It  must  also  continuously  be  borne  in 
mind  that  this  chancery  power  to  sentence  for  contempt  of  an  in- 
junction writ  is  wholly  different,  both  in  historical  origin  and  in  logic, 
from  the  necessary  inherent  power  of  any  common  law  court  to 
punish  for  contempts  committed  in  the  presence  of  the  court  itself; 
for  this  is  a  power  inherent  in  the  Court,  and  the  Massachusetts 
Body  of  Liberties  in  1641  only  anticipates  the  Oklahoma  Constitu- 
tion of  1907  in  recognizing  it  only  as  to  "contempts  in  open  court."  * 
We  have  already  cited  many  statutes  indicating  the  dislike  of  our 
ancestors  to  courts  of  Chancery  and  the  Star  Chamber ;  Coke  him- 
self speaks  of  the  latter  complainingly  as  "  a  court  of  criminal  equity." 
In  1327  King  Edward  III  found  it  necessary  to  adopt  some  more 
effectual  measures  of  police  than  those  which  already  existed.  For 
this  purpose  justices  of  the  peace  were  first  instituted  throughout  the 
country,  with  power  to  take  security  for  the  peace  and  bind  over 
parties  who  threatened  offence ;  ^  and  only  four  years  after  this  we 
find  the  first  statute  against  invasion  of  common  law  jurisdiction  by 
the  chancellor,  forbidding  the  arrest  or  conviction  of  a  man  or  the 
forfeiture  of  his  property  without  a  jury  trial  in  a  common  law  court. 
In  1382  the  Commons  themselves  complained  to  the  king  of  grievous 
oppression  by  the  great  barons  which  rendered  the  remedies  of  com- 
mon law  courts  of  no  avail.  Accordingly  the  judges  of  these  courts 
themselves  were  placed  under  the  special  supervision  of  the  chan- 
cellor, who  began  to  exercise  his  authority  in  repressing  disorderly 
obstructions  to  the  courts  of  law  and  in  affording  civil  remedy  in 
cases  of  outrage  which  could  not  be  effectually  redressed  through  the 
ordinary  tribunals  (precisely  the  reason  advanced  for  the  great  use 
made  of  the  injunction  writ  to-day) ;  but  thereupon  the  Commons 
took  great  umbrage  at  the  exercise  of  such  authority  by  the  chan- 
cellor, claiming  that  this  jurisdiction  was  an  interference  with  the 
common  law,  but  the  king  persevered,  stating  that  he  would  pre- 
serve his  prerogative.^    Later  the  Court  of  Star  Chamber  had  the 

*  Mass.  Body  Liberties  §  18;  Book  Injunctions,"  printed  as  Senate  Doeu- 

III,  §  662.  ment,  Report  827,  54th  Congress,  1st 

^  Spence,   Equity  Jurisdiction,  pp.  Session;     Political   Science   Quarterly, 

342-344.  Vol.  10,  No.  2. 

^  F.   J.   Stimson,   "Modern  Use  of 


CHAR    IV]  CHANCERY   AND   THE   INJUNCTION    ORDER  27 

same  jurisdiction  and  Coke  particularly  mentions  as  part  of  it  "the 
suppression  ...  of  great  and  horrible  riots,  routs,  and  unlawful 
assemblies,  leaving  ordinary  offences  to  the  courts  of  law,"  '  In 
1348,  according  to  Herbert  Spencer,  the  court  of  Chancery  became 
the  Court  of  Equity  with  power  to  relieve  in  certain  cases  and  a 
fixed  abode ;  and  it  is  a  curious  coincidence  that  the  very  next  year 
was  passed  the  first  Statute  of  Laborers,  the  first  law  requiring  com- 
pulsory labor  save  of  slaves  or  villeins  in  England ;  confirmed  in  1360 
by  a  statute  which  also  contains  the  first  prohibition  against  com- 
binations by  trade  alliances  in  restraint  of  trade  or  to  fix  wages,  and 
in  13SS  villeinage  was  abolished  or  commuted  to  a  fixed  money  pay- 
ment. That  is  to  say,  the  freedom  of  labor  and  the  pi'inciple  for- 
bidding combinations  to  control  labor  grew  up  together.  Then, 
in  1452,  after  Jack  Cade's  Rebellion,  we  have  the  definite  invention 
of  chancery  process  to  control  riotous  laborers  already  (Chapter  II) 
referred  to;  and  in  14S7  the  Court  of  Star  Chamber  is  given  special 
authority  over  riots  and  disorders.  Finally,  in  the  5th  of  Elizabeth, 
the  gi-eat  Statute  of  Laborers  was  enacted,  consolidating  all  previous 
laws  and  still  maintaining  the  principle  of  compulsory  labor  and  fixed 
wages,  but  it  was  only  enacted  to  be  forgotten,  save  for  the  prin- 
ciple that  it  bequeathed  to  English  law  that  strikes  and  trade 
unions  were  unlawful  combinations. 

Many  further  authorities  can  be  cited  to  sustain  this  position ; 
but  these  are  sufficient  to  establish  the  general  principle  that 
the  injunction  process  and  contempt  in  chancery  procedure,  as 
well  as  chancery  jurisdiction  itself,  is  looked  on  with  a  logical 
jealousy  in  Anglo-Saxon  countries  as  being  in  derogation  of  the 
common  law;  and  that,  while  an  injunction  to  prevent  irre- 
parable injury  to  property  or  private  rights  will  not  be  refused  be- 
cause the  injury  be  also  a  crime  or  misdemeanor,  yet  the  naked 
principle  is  undoubtedly  true,  as  indeed  is  the  history  and  the 
logic  of  the  thing,  that  under  the  English  legal  system  the  power 
of  the  king's  chancellor  may  not  be  invoked  to  forbid  or  punish 
a  crime  as  such,  thus  taking  away  the  jurisdiction  of  the  com- 
mon law  courts  and  depriving  the  person  accused  of  his  trial  by 
jury.^    The  objection,  therefore,  to  the  abuse  of  the  injunction  is 

'  F.  J.  Stimson,  "Handbook  to  the  right  of  property,  and  who  makes  out 

Labor  Law  of  the  United  States,"  1st  that  an  action  at  law  will  not  be  a  suffi- 

Edition,  pp.  315-316.  cient  remedy  and  protection  against  in- 

^  "A  court  of  equity  has  no  criminal  truding  upon  his  possession."  (Macauley 

jurisdiction,  but  it  lends  its  assistance  v.  Shackell,  1  Bhgh,  N.  S.,  96,  127.) 
to  a  man  who  has,  in  view  of  the  law,  a         "...  'If  an  act  be  illegal,'  said  Vice- 


28  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

sound,  and  this  in  our  country  not  only  for  the  historical  reason  we 
have  explained,  but  because  it  tends  to  make  the  courts  no  longer 
judicial  but  in  eflect  part  of  the  Executive  branch  of  government. 
This  is  the  sense  of  the  popular  phrase  —  and  most  popular  phrases 
have  some  sense  —  "government  by  injunction."  ' 

There  has,  of  course,  been  no  constitutional  limitation  of  the 
powers  of  equity  in  England,  nor  is  there  in  the  Federal  Constitution, 
which  clearly  contemplated  giving  all  judicial  power  which  then 
existed  in  p]ngland  to  the  Federal  judiciary  in  cases  where  they  had 
jurisdiction ;  but  the  State  Constitutions  are  beginning  to  deal  with 
the  subject  and  several  States  have  attempted  statutes.  The  matter 
is  likely  to  be  of  large  importance  in  thie  future,  for  bills  to  limit  or 
prohibit  punishment  by  contempt  for  disobedience  to  injunctions 
granted  by  courts  of  equity,  at  least  in  labor  or  trade  disputes,  are 
pending  before  Congress  and  in  nearly  every  State  of  the  Union. 
The  constitutional  provisions  will  be  found  in  Book  III,  §  GC2. 
They  have  so  far  been  adopted  in  the  Constitutions  of  seven  States. 
Whether,  in  the  absence  of  a  constitutional  provision,  a  statute  to 
that  effect  would  be  valid,  is  a  matter  so  untouched  as  yet  by  any 
decision  of  a  high  court  that  the  author  can  only  hazard  his  own 
opinion.  While  a  legislature  cannot  take  away  the  power  of  a  com- 
mon law  court,  at  least,  to  sentence  for  actual  contempt  committed 
in  its  presence,  necessary  to  preserve  the  dignity  of  the  court,  there 
would  seem  no  reason  why,  in  the  absence  of  a  constitutional  pro- 
vision recognizing  chancery  jurisdiction,  a  State  legislature  should  not 
do  away  with  contempt  process  in  equity  or  even  with  chancery 
jurisdiction  entirely,  though  perhaps  it  may  not  legislate  especially 
and  only  for  labor  disputes,  under  the  Fourteenth  Amendment.  In 
some  States,  as  has  been  pointed  out,  chancery  jurisdiction  did  not 
originally  exist;  there  are,  however,  several  States  which  recognize 
it  in  their  Constitutions,^  while  other  States  declare  that  common 
law  and  chancery  shall  be  "fused"  or  that  all  the  courts  shall  exer- 
cise chancery  jurisdiction.  In  these  States,  as  the  doctrine  of  specific 
performance  and  the  contempt  power  is  the  very  right  arm  of  chan- 

Chancellor  Kindersley,  in  Solteau  v.  J.  Stimson,  "Handbook  to  the  Labor 
De  Held,  2  Sim.  &  Stu.  153,  'I  am  not  Law  of  the  United  States,"  p.  318. 
to  grant  an  injunction  to  restrain  an  '  U.  S.  Senate  Report  827,  54th 
illegal  act  merely  because  it  is  illegal.  Congress,  1st  Session,  p.  IIG.  Charles 
I  cannot  grant  an  injunction  to  re-  Claflin  Allen,  "Injunction  and  Organ- 
strain  a  man  from  smuggling,  which  ized  Labor,"  17  American  Bar  Associa- 
is  an  illegal  act,'  nor  could  he  for  any  tion  Reports,  p.  299. 
merely  criminal  or  penal  offence."    F.  '  See  Book  III,  §  651. 


CHAP.    IV]  CHANCERY   AND    THE   INJUNCTION    ORDER  29 

eery,  it  may  be  questioned  whether  a  State  statute  may  forbid  the 
writ  of  injunction,  require  a  jury  trial,  or  deny  the  power  to  enforce 
it  by  fine  or  imprisonment;  and  so  Congress,  under  the  Federal 
Constitution,  may  have  no  such  power.  But  it  may  surely  limit 
the  extent  of  punishment  to  be  inflicted,  as  is  done  by  statute  in 
Kentucky,  to  imprisonment  for  ten  or  thirty  days,  or  at  most  six 
months,  —  the  extreme  sentence  now  usually  imposed.  A  shorter 
limit  would  be  adequate  to  any  emergency  and  equally  well  pro- 
tect the  dignity  of  the  Court. 


30  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 


CHAPTER   V 

THE   RIGHT   TO   LABOR   AND   TRADE 

Coming  last  to  the  liberty  of  labor  or  trade,  it  is  the  more  import- 
ant to  trace  the  appearance  of  the  great  principles  falling  under  this 
head  for  the  reason  that  they  have  largely  been  lost  sight  of  in  Ameri- 
can jurisprudence.  The  frequent  enactment  of  acts  against  trusts, 
monopolies,  or  contracts  in  restraint  of  trade,  both  State  and  Federal, 
show  that  our  Legislatures,  if  not  our  Bench  and  Bar,  must  have 
substantially  forgotten  the  body  of  the  common  law,  to  say  nothing 
of  the  course  of  English  constitutional  history  upon  these  matters. 

For  the  broader  understanding  of  the  liberty  right  involves  as 
well  as  the  liberty  of  life  and  person,  the  liberty  to  support  life  and 
family.  That  is,  to  exercise  one's  labor  freely  and  without  control, 
to  acquire  possessions,  to  earn  wages  and  to  exercise  one's  faculties 
in  any  lawful  way,  without  competition  by  the  State  or  any  organism 
of  the  State  and  without  restraint  or  hindrance  by  the  government 
or  by  individuals.  The  extent  of  this  right  is  the  matter  most  dis- 
cussed to-day  and  therefore  it  is  far  the  most  important  one  to  be 
considered.  Closely  connected  with  it  is  the  right  to  private  property, 
at  least  in  so  far  as  such  property  is  the  result  of  a  man's  labor,^  and 
the  right  to  freedom  of  contract  for  such  labor  or  in  the  exercise  of 
such  trade  both  as  to  reward  or  profits  and  conditions.  There  is 
probably  no  constitutional  principle  more  often  invaded  by  modern 
statutes  than  is  this. 

Both  liberty  of  the  person  and  liberty  of  trade  are  guaranteed  by 
the  great  clause  of  Magna  Carta,  especially  by  the  explanatory 
words  added  in  the  Charter  of  Henry  HI:  "No  free  man  shall  be 
taken  or  imprisoned  or  disseised  of  his  freehold  or  his  liberties  or 
his  free  customs,  unless  by  the  lawful  judgment  of  his  peers  or  by 
the  law  of  the  land,"  which  latter  expression  was,  as  we  have  found, 
changed  in  the  recital  of  later  statutes  to  "due  process  of  law."  ^    Sir 

*  This  kind  of  property  is  expressly    Book  III,  §§  13,  14;  also  see  Chapter 
declared  to  be  the  only  one  guaranteed    VIII,  infra. 
by  the  Constitution  of  Oklahoma;  see         ^  See  §§  127,  130,  notes. 


CHAP.   V]  THE    RIGHT   TO   LABOR   AND   TRADE  31 

Edward  Coke's  famous  exposition  of  this  clause  points  out  that  it 
protects,  and  was  understood  at  the  time  to  protect,  a  man's  liberties 
or  free  customs,  meaning  both  the  laws  of  the  realm,  any  franchises 
and  privileges  that  may  have  been  bestowed  upon  him,  and  the  na- 
tional freedom  possessed  by  the  subjects  of  England ;  and,  as  being 
opposed  to  these  last,  forbids  monopolies ;  *  and  we  may  add  to 
these  many  other  matters  as  we  follow  the  development  of  this 
clause  in  the  statutes.  Moreover,  the  Preamble  begins  by  saying 
"We  have  granted  to  all  the  freemen  of  our  kingdom  all  the  under 
written  liberties";  and  a  very  important  result  of  the  constitutional 
right  to  trade  or  labor  lay  in  the  fact  that  a  villein,  although  escaping 
from  the  Lord  of  his  manor,  who  worked  at  a  trade  in  a  town  a  year 
and  a  day,  thereby  became  free.  Another  great  development  of 
this  principle  was  the  successful  insistence  of  laborers  that  their 
wages  should  be  paid  in  money  and  not  in  produce;  for  money  is 
the  badge  of  free  labor;  as  we  instinctively  feel  about  peonage. 
Still  another  clause  of  Magna  Carta  (Cap.  13)  provides  that  the 
City  of  London  shall  have  all  its  ancient  liberties  and  free  customs, 
and  so  of  all  other  cities,  etc.,  which  means  not  only  the  right  to  law, 
as  described  in  the  last  chapter,  but  the  freedom  of  trade  and  labor 
as  well.  Cap.  33  in  Magna  Carta  providing  for  the  destruction  of 
all  weirs  or  impediments  to  navigation,  early  suggests  the  general 
freedom  of  trade  under  the  Enghsh  Constitution;  so  Cap.  41, 
providing  for  the  liberty  of  merchants,  and  prohibiting  any  evil  tolls 
other  than  the  ancient  and  allowed  customs;  and  the  Charter  of 
Henry  III  (Cap.  30)  amplifies  this.  EarHer  local  charters  recogniz- 
ing freedom  of  trade  were  granted  to  London  by  Henry  I ;  Mo  all 
men  by  Henry  H  in  his  Charter  of  Liberties,^  and  so  in  his 
Charter  to  the  Town  of  Winchester,*  and  later  by  Richard  I  to 
the  same  town.^  In  1200  the  Charter  of  Nottingham  ^  recognizes  the 
trade  gild  with  similar  liberties.  The  usual  phrase  in  all  these  char- 
ters is  "the  ancient  and  free  customs  which  are  enjoyed  by  the 
citizens  of  London  oi'  which  were  enjoyed  by  the  town  itself  when 
they  had  them  'best  or  most  free.'"''  So  the  Charter  of  York* 
recognizes  especially  its  merchant  gild.  While,  finally,  the  Charter  of 
John  to  London^  grants  them  to  have  "well  and  in  peace  freely, 

'  Taswell-Langmead,  p.  104.  •  Ibid.,  p.  309. 

'  Stubbs'  Charters,  p.  108.  '  Charter  of  Winchester,  A.  D.  1190, 

"  Ibid.,  p.  135.  Stubbs,  p.  266. 

*  Ibid.,  p.  165.  "  A.  D.  1200,  Stubbs,  p.  312. 

*  Ibid.,  p.  266.  "  A.  D.  1215,  Stubbs,  p.  314. 


32  THE   AMKIUCAN   CONSTITUTIONS  [bOOK   I 

quietly  and  in  full  all  its  liberties  vvhicli  they  were  used  to  have  up  to 
that  time  as  well  in  the  town  of  London  as  outside,  by  sea  or  by  land 
and  in  all  other  places."     All  these,  it  will  be  noted,  preceded  Magna 
Carta,  and  that  instrument  goes  beyond  trade,  to  recognize  what  we 
should  call  commerce ;  as  in  Cap.  33,  providing  for  freedom  of  naviga- 
tion of  all  rivers,  and  Cap.  42,  granting  liberty  to  all  to  leave  the  king- 
dom and  return  to  it  at  will.    So,  a  statute  of  1335  allows  free  trading 
in  England  to  foreign  merchants,  and  in  1340  all   merchants  are 
allowed  to  come  freely  into  the  kingdom,  and  in  1344  all  persons 
may  buy  or  export  wool  and  the  seas  shall  be  open  to  merchants. 
The  Statutes  of  Staple  are  full  of  provisions  requiring  freedom  of 
trade.     In  1362,  36  Edward  III,  there  is  a  statute  requiring  mer- 
chants to  deal  in  only  one  kind  of  goods,  and  handicraftsmen  to  use 
but  one  mystery  or  trade,  but  it  is  notable  that  the  former  part  of  the 
statute  was  repealed  the  following  year;  the  part  concerning  handi- 
craftsmen, only  under  Elizabeth.    In  1383  Wat  Tyler  for  the  villeins 
demanded  among  other  things  freedom  of  commerce  in  market  towns. 
In  1436  is  the  first  statute  against  by-laws  in  restraint  of  trade  "by 
persons  in  confederacy  for  their  singular  profit  and  the  common 
damage  of  the  people,"  using  modern  language,  but  recognizing  such 
combinations  as  unlawful  by  existing  law.    It  would  be  easy  to  mul- 
tiply examples  of  statutes  recognizing  the  general  right  of  the  English 
freeman  to  labor  or  to  trade  without  being  coerced  in  any  manner  and 
without  combination  or  privilege  against  him.^    In  the  Declaration  of 
Independence  the  king  is  complained  of  "for  cutting  off  our  trade 
with  all  parts  of  the  world,"  but  the  principle  was  so  thoroughly 
established  as  to  require  no  express  mention  in  our  Federal  Con- 
stitution other  than  that  contained  in  the  ordinary  due-process-of-law 
clause  of  the  Fifth  Amendment,  and  of  the  Fourteenth  Amendment 
requiring  for  all  persons  the  equal  protection  of  the  laws;  the  word 
"liberty"  being  well  understood  to  include  this  most  important 
liberty-right  as  well  as  the  mere  right  to  life  and  personal  freedom. 
The  broad  principle  is  probably  nowhere  better  defined  than  by  the 
Supreme  Court  of  the  United  States,  speaking  through  Mr.  Justice 
Field  in  the  Slaughterhouse  Cases  ^  "Among  these  inalienable  rights 
as  proclaimed  in  that  great  document  [the  Declaration  of  Independ- 
ence] is  the  right  of  men  to  pursue  their  happiness,  by  which  is 
meant  the  right  to  pursue  any  lawful  business  or  vocation  in  any 
manner  not  inconsistent  with  the  equal  rights  of  others,  which  may 
»  See  more  particularly  Chapter  VI I.        '  111  U.  S.  757. 


CHAP.    V]  THE   RIGHT   TO   LABOR   AND    TRADE  33 

increase  their  property,  or  develop  their  faculties,  so  as  to  give  them 
their  highest  enjoyment.  .  .  .  The  common  business  and  callings  of 
life,  the  ordinary  trades  and  pursuits,  which  are  innocuous  in  them- 
selves, and  have  been  followed  in  all  communities  from  time  im- 
memorial, must,  therefore,  be  free  in  this  country  to  all  alike  upon 
the  same  conditions.  The  right  to  pursue  them,  without  let  or  hin- 
drance, except  that  which  is  applied  to  all  persons  of  the  same  age, 
sex,  and  condition,  is  a  distinguishing  privilege  of  citizens  of  the 
United  States,  and  an  essential  element  of  that  freedom  which  they 
claim  as  their  birthright."  And  by  the  same  Court  through  Mr. 
Justice  Peckham  in  Allgeyer  v.  Louisiana :  *  "The  liberty  mentioned 
in  that  amendment  [the  fourteenth]  means  not  only  the  right  of  the 
citizen  to  be  free  from  the  mere  physical  restraints  of  his  person,  — 
as  by  incarceration,  —  but  the  term  is  deemed  to  embrace  the  right 
of  the  citizen  to  be  free  in  the  enjoyment  of  all  his  faculties ;  to  be 
free  to  use  them  in  all  lawful  ways ;  to  live  and  work  where  he  will, 
to  earn  his  livelihood  by  any  lawful  calling;  to  pursue  any  liveli- 
hood or  avocation ;  and  for  that  purpose  to  enter  into  all  contracts 
which  may  be  proper,  necessary,  and  essential  to  his  carrying  out  to 
a  successful  conclusion  the  purposes  above  mentioned."  Neverthe- 
less, a  few  of  the  newer  State  Constitutions  express  the  right  and 
express  it  very  well.^ 

As  we  have  said,  both  the  right  to  labor  and  the  right  to  property 
necessitate  the  right  of  free  contract ;  and  while  it  may  be  admitted 
that  a  legislature  in  the  exercise  of  the  police  power  may  enact  a 
statute  forbidding  for  the  future  a  specific  class  of  contracts  when  the 
court  can  see  that  the  object  of  such  statute  bears  an  intelligible  rela- 
tion to  the  health  or  safety  of  the  community  or  to  protect  it  against 
imposition  or  fraud,  an  arbitrary  statute,  especially  when  directed 
against  certain  races  or  certain  classes  of  the  community,  should  not 
be  held  constitutional. 

The  constitutional  freedom  of  labor  and  trade  involves,  as  has  been 
said,  matters  commonly  invaded  by  modern  statutes;  such  as  our 
laws  fixing  the  hours  of  labor  of  adult  men  in  special  occupations, 
and  of  women  of  full  age  in  all,  in  States  which  adopt  the  theory  or 
express  in  their  Constitution  the  civic  equality  of  women  in  all 
particulars  with  men ;  ^  Massachusetts,  however,  allows  the  labor  of 
adult  women  to  be  limited  by  law,  at  least  in  ordinary  mills  and 

»  165  U.  S.  589.  ^  See  Book  III,  §§  23,  24,  and  25 

=»  See  Book  III,  §§  6,  13,  14,  16,  20.    ^ith  notes. 


34  THE    AMERICAN    CONSTITUTIONS  [bOOK   I 

factories;  and  a  law  of  Oregon  prescribing  her  hours  of  work  in 
all  mechanical  employment  has  recently  been  declared  by  the 
Supreme  Court  not  to  violate  the  Fourteenth  Amendment.  In 
all  States  such  regulation  is  permissible  as  to  persons  under  age. 
And  in  all  States,  it  would  seem,  the  labor  of  women  may  be  re- 
stricted or  forbidden  in  occupations  tending  to  immorality  or  to 
provoke  immorality  in  others,  such  as  serving  in  drinking  saloons; 
and  the  labor  of  adult  men  may  be  regulated  in  such  employments 
as  are  dangerous  to  the  health  or  safety  of  the  public.  But  the  better 
law  is  that  the  hours  of  labor  of  adult  men  may  not  be  limited  for  the 
benefit  merely  of  the  health  of  those  employed.  So,  of  the  rate  of  the 
wages  and  the  payment  of  wages.  It  will  be  seen  in  the  Historical 
Digest  that  a  long  series  of  acts  endeavoring  to  fix  the  rate  of  wages 
and,  indeed,  general  prices,  began  in  England  as  early  as  1266,  was 
abandoned,  and  tried  again  until  finally  definitely  given  up  for  the 
last  time  about  the  time  of  Elizabeth.'  The  result  may  be  said  to  be 
that  the  fixing  of  wages  is  part  of  the  freedom  of  contract  with  which 
the  State  cannot  interfere,  at  least  in  ordinary  cases  (for  the  exception 
of  seamen  is  perhaps  as  old  as  the  principle  itself).  One  State  Con- 
stitution states  this  expressly ;  ^  but  the  expression  is  probably 
unnecessary.  New  York  alone,  in  a  recent  Constitutional  Amend- 
ment, makes  a  step  in  the  direction  of  allowing  the  State  to  fix  wages 
in  public  employments.  The  question  whether  the  time  or  kind  of 
payment  of  wages  may  be  regulated  by  statute  is  much  more  difficult. 
This  interference  with  the  freedom  of  contract  has  led  to  wide  dif- 
ferences of  opinion  in  the  courts.  In  Massachusetts  a  weekly  pay- 
ment law  has  been  held  not  an  infringement  upon  personal  liberty; 
in  most  of  the  western  and  southern  States,  otherwise.^  Laws  requir- 
ing wages  to  be  paid  in  money  or  in  cash  orders,  not  in  commodities 
or  store  credits,  have  been  more  usually  held  constitutional,  as 
tending  to  protect  the  public,  or  a  large  class  of  the  public,  against 
fraud;  and  as  has  been  said,  the  contracts  of  seamen  have  been 
regulated  from  time  immemorial.  The  whole  question  comes  down 
to  this,  whether  there  is  such  a  constitutional  principle  as  the  right 
to  freedom  of  contract ;  that  is  to  say,  a  constitutional  right  to  make 

'  See    "Historical    Digest,"    Annis   commodities     were    given    up    much 
1266,    1349,    1350,    1353,    1362,    1388,    sooner. 
1389,  1427,  1444,  1514,  1562.  The  effort        '  See  Book  III,  §  14. 
to  regulate   the  labor  contract  ended        '  For  a  full  statement  of  all  these 
with  Elizabeth;    laws  fixing  prices  for   matters,  see  the  author's  "Handbook 

to  the  Labor  Law  of  the  U.  S." 


CHAP.  V]        THE  RIGHT  TO  LABOR  AND  TRADE  35 

what  contract  the  two  parties  clioose,  so  long  as  it  be  not  criminal  or 
immoral.  It  is  still  impossible  to  make  a  final  and  definite  decision 
on  this  point.  The  courts,  from  the  Supreme  Court  of  the  United 
States  down,  while  they  have  shown  a  tendency  to  sustain  a  law 
prohibiting  future  contracts  of  a  certain  kind  when  they  can  see  an 
element  of  fraud  or  protection  to  the  people,  have,  at  the  same  time, 
when  their  attention  is  not  called  primarily  to  the  question  of  legisla- 
tive power,  found,  or  still  more,  taken  as  a  matter  of  course,  in 
hundreds  of  decisions,  that  there  is  such  a  thing  as  a  constitutional 
right  to  freedom  of  contract  derived  from  either  of  two  sources,  — 
the  right  of  freedom  to  labor  or  the  right  to  acquire  property ;  neither 
right  being  of  value  unless  one  can  make  contracts  concerning  it. 

The  scene  of  battle  to-day,  for  this  principle,  is  the  question  of 
contracts  agreeing  or  not  agreeing  to  employ,  or  not  to  discharge,  or 
not  to  employ,  either  Union  or  Non-Union  labor  (for  the  legal 
principle  must  be  the  same  whether  the  contract  concern  Union 
labor  or  Non-Union  labor,  whether  the  promise  be  by  the  employer 
or  by  the  employees,  whether  the  illegal  combination  or  compulsion 
complained  of  be  exercised  by  one  or  the  other  side  to  the  dispute). 
Many  States  have  passed  statutes  forbidding  discrimination  against 
Union  labor,  that  is,  forbidding  an  employer  to  discharge,  or  not  to 
employ,  or  to  threaten  to  discharge  a  person  for  being  a  member  of 
a  Union.  In  most  of  the  States  where  such  statutes  have  been  con- 
strued by  the  courts  they  have  been  held  unconstitutional;  and  so 
recently  by  the  U.  S.  Supreme  Court.* 

»  Adair  v.  U.  S.,  28  Sup.  Ct.  Rep.  277. 


36  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 


CHAPTER  VI 

THE  RIGHT  TO   PROPERTY 

All  personal  property  is  the  result,  in  last  analysis,  of  free  labor, 
while  ownership  of  land  was  a  cause  of  freedom  in  itself.  This 
species  of  property,  indeed,  preceded  the  right  to  labor  discussed  in 
the  last  chapter,  and  while  it  is  probable  that  there  was  always  prop- 
erty in  a  man's  personal  belongings,  yet  the  written  law  was  not 
much  concerned  with  personal  property  until  some  time  after  the 
Norman  Conquest  when  (1100)  we  find  a  statute  giving  a  man  the 
right  to  bequeath  it  at  his  death.  The  abstract  word  "property" 
is  not  mentioned  in  any  constitutional  document  before  the  Virginia 
Bill  of  Rights;  but  the  Massachusetts  Body  of  Liberties  protects  a 
man's  ''goods  or  estate,"  while  the  words  "freehold"  and  "cattle" 
in  Magna  Carta  itself  substantially  comprise  all  varieties  of  property 
then  commonly  enjoyed.  It  is  noteworthy  that  the  property  right 
is  guaranteed  by  the  same  words  and  in  the  same  clause  in  all  con- 
stitutional documents  from  Magna  Carta  to  Oklahoma,  although 
Oklahoma  afterwards  qualifies  it  by  saying  that  a  man  has  an  inher- 
ent right  only  to  such  property  as  results  from  his  own  natural 
industry.^  On  the  other  hand,  Washington  and  Utah  expressly 
say  that  the  object  of  government  is  to  protect  and  maintain  indi- 
vidual rights.  The  Petition  of  Rights  recites  both  ^Nlagna  Carta  and 
the  Statute  28  Edward  III  requiring  "due  process  of  law";  while 
the  Massachusetts  Body  of  Liberties  (Section  1)  seems  to  think  that 
a  statute  might  deprive  a  man  of  his  property,  wife,  children,  or  estate 
if  it  were  only  general  and  published  beforehand ;  while  if  there  be 
no  common  law  or  statute  for  the  case,  it  may  be  "by  the  Word  of 
God."  So,  "Christianity  is  part  of  the  common  law."  The  right 
of  the  State  to  take  property  upon  due  compensation  will  be  found 
expressed  repeatedly  in  Magna  Carta  ^  and  indeed  in  many  other 
constitutional  documents ;  while  the  American  Constitutions  ^  only 
add  that  the  compensation  must  be  made  before  the  taking,  and  the 
amount  found  by  a  jury.* 

»  See  Book  III,  §§  14,  130,  183.  ^  See  Book  III,  §§  90,  91. 

="  Caps.  28,  30,  31.  *  See  Book  111,  §§  93,  94. 


CHAP.    Vl]  THE    RIGHT   TO   TROrEKTY  37 

The  usual  infringements  of  the  property  right  are  by  way  of  taxa- 
tion, regulation  of  rates  or  charges,  and  the  police  power.^  The  earliest 
tax,  in  the  modern  sense,  other  than  the  feudal  Aids,  was  the  Saladin 
tithe  on  personal  property  (1188).'  The  right  to  regulate  the  charges 
of  those  exercising  franchises  or  enjoying  monopolies  granted  by  the 
State  does  not  properly  fall  under  the  head  of  either  eminent  domain 
or  the  police  power,  though  often  confounded  with  one  or  the  other, 
and  is  equally  ancient. 

We  have  already  pointed  out  how  Clauses  12  and  14  of  Magna 
Carta,  requiring  that  no  aid  or  tax  should  be  taken  except  by  the 
Common  Council  of  the  Realm  and  prescribing  how  the  Common 
Council  of  the  Realm  should  be  held,  —  that  is,  by  a  summons  to  the 
bishops  and  greater  barons  by  special  writ  and  to  other  chief  tenants 
by  general  writ, — were  omitted  one  year  later  in  the  Reissue  of  Henry 
III  and  not  restored  until  the  Confirmation  of  Charters  of  Ed- 
ward III  in  1297;  when  the  important  phrase  is  furthermore  added 
that  they  must  not  only  be  by  the  common  assent,  but  also  for  the 
common  profit  of  the  Realm;  and  by  1353  this  was  established  to 
apply  also  to  indirect  taxation,  and  by  1407,  that  all  money  bills 
must  originate  in  the  lower  house.  These  principles  have  neither 
been  added  to  nor  improved  upon  in  the  very  latest  State  Constitu- 
tions, which,  indeed,  have  rather  shown  a  tendency  to  infringe  upon 
them,  as  in  the  betterment  tax,  and  in  the  extension  of  the  right  of 
eminent  domain  to  private  uses,  recently,  however,  held  unconstitu- 
tional in  the  State  of  Wyoming.^  The  Massachusetts  Body  of  Liber- 
ties (Clause  8)  extends  the  principle  of  eminent  domain  only  to  cattle 
and  goods.  The  Petition  of  Rights  repeats  Magna  Carta  as  to  taxa- 
tion by  assent  of  Parliament;  and  the  several  State  Constitutions 
merely  repeat  the  general  principle,  though  they  sometimes  forbid 
the  right  to  tax  to  be  given  or  granted  away.*  So,  also,  the  Federal 
Constitution,^  that  taxes  must  be  for  the  general  welfare  of  the  United 
States  and  be  uniform,  and  "  that  bills  for  raising  revenue  shall  origi- 
nate in  the  lower  house.  The  principle  that  money  raised  by  taxation 
must  be  used  for  purposes  to  which  it  is  expressly  appropriated, 
established  in  England  in  1666,  is  repeated.^  The  Bill  of  Rights 
complains  of  the  king's  levying  money  without  the  grant  of  Parlia- 

'  See  Mr.  Justice  Brewer's  "  Address  '  Sterritt  v.  Young,  82  Pac.  946. 

tothe  Yale  Law  School,"  June  23,  1891.  "  See  Book  III,  §  330. 

*  For  other  early  tax  laws,  see  His-  ®  Art.  I,  §  8,  Clause  1. 

torical  Digest,  Annis  1193,  1203,  1275,  «  Art.  I,  §  7,  Clause  1. 

1309,  1322.  '  Art.  I,  §  9,  Clause  7. 


38  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

ment,  and  the  Declaration  of  Independence  that  he  imposed  taxes 
on  the  Colonies  without  their  consent. 

Neither  police  power  nor  the  regulation  of  charges  is  mentioned 
in  any  constitutional  document ;  but  the  early  statutes  are  full  of 
instances  independent  of  the  attempted  fixing  of  the  price  of  bread 
and  beer  according  to  the  price  of  wheat  and  barley  respectively 
by  the  Assize  of  bread  and  beer ; '  nine  years  later  the  great  Statute 
of  Westminster  I  prohibits  excessive  toll  contrary  to  the  common 
custom  of  the  Realm  in  all  market  towns;  and  many  such  statutes 
might  be  found  applying  to  ferries,  wharves,  toll  roads,  or  any  other 
franchise  or  monopoly  made  by  law.  And  finally,  in  the  year  1G91, 
there  is  a  general  statute  fixing  the  rates  of  common  carriers.  More- 
over the  early  reports  are  full  of  indictments  against  persons  keeping 
a  ferry,  etc.,  for  extortion.^  Logically,  it  would  seem  that  the  right 
of  the  State  to  regulate  charges  by  those  enjoying  franchises  it  has 
granted  would  be  absolute;  it  has  no  connection  with  the  eminent 
domain  principle  requiring  property  not  to  be  taken  without  com- 
pensation ;  but  American  courts  have  held  the  right  subordinate  to 
the  constitutional  provisions  securing  property  right.^ 

The  principle  against  monopoly  or  restraint  of  trade,  though  not 
expressed  in  any  constitutional  document,  is  quite  as  old  as  many 
that  are,  and  may  fairly  be  considered  as  part  of  the  law  of  the  land. 
Indeed  there  is  no  principle  in  any  of  the  modern  statutes  against 
trusts  which  cannot  be  traced  to  an  historical  prototype.  It  is  only 
necessary  to  look  at  our  Historical  Digest  to  see  how  frequently 
these  principles  find  expression  in  statutes  from  the  very  earliest 
times,  when  statutes  were  understood  but  to  express  the  common 
law.*  The  common  law  against  contracts  in  restraint  of  trade  and 
engrossing  of  the  market  having  been  thus  established,  we  begin  to 
find  the  same  evil  reappearing  under  State  grants  of  monopoly; 
much  as  to-day  when  the  trusts  were  forbidden  by  the  Sherman  Act 
of  1S90  against  trusts,  they  proceeded  to  form  corporations,  thereby 
securing  a  franchise  under  the  shield  of  some  State.  Indeed  it  is 
hardly  too  much  to  say  that  the  so-called  anti-trust  legislation,  by 
preventing  any  reasonable  agreement  even  when  meant  only  to 

»  "Historical  Digest,"  Anno  1266.  *  See  Book  II,  "Historical  Digest," 

^  I.  e.,  discrimination.     See   Rex  v.  Annis   1285,    1335,    1350,    1362,    1425, 

Burdett,lLd.  Raymond,  143;  Roberts'  1436,  1503,  1533,  1552.     In  this  year 

case,  4  Mod.  101;  Rex  v.  Wadsworth,  the    statute    against    forestalling   was 

5  Mod.  13.  made  perpetual,  and  not  repealed  until 

^  See   Book   III,    §    13   and   note;  the  latter  part  of  the  18th  century. 
U.  S.  C.  Amts.  5  &  14. 


CHAP.   Vl]  THE    RIGHT   TO   PROPERTY  39 

make  rates  equal  and  prevent  discrimination,  compelled  in  itself 
the  formation  of  the  thing  it  was  designed  to  prevent. 

Noticing  as  we  pass  an  early  appearance  of  the  prejudice  against 
middle-men,  especially  coal  dealers  (1553)  and  the  statute  of  1555, 
which  seems  to  anticipate  the  notions  of  modern  socialists  that  there 
is  a  monopoly  in  the  instrumentalities  for  the  production  of  wealth, 
we  find  in  1571  a  definite  complaint  of  monopoly.  In  1601  the  abuse 
increases  so  much  that  indignant  speeches  are  made  about  it  in  the 
House  of  Commons.'  Nevertheless,  James  I  found  it  too  easy  a 
method  of  raising  money  to  abandon,  and  he  awarded  patents  for 
dealing  in  articles  which  were  not  even  inventions  or  matters  of 
special  trade.  About  this  time  too  arose  the  trading  corporation, 
then  really  first  invented,  historically  derived  from  the  religious 
corporation  or  the  gild,  but  now  directed  to  private  gain  and  having 
one  of  the  essential  modern  attributes,  perpetual  succession,  though 
the  other,  that  of  non-liability  of  members,  was  not,  as  far  as  I  can 
learn,  imagined  until  a  statute  of  the  State  of  Connecticut  enacted 
in  May,  1818.  These  early  corporations,  however,  such  as  "The 
Turkey  Company,"  "The  India  Company,"  "The  Hudson  Bay 
Company"  often  gave  a  monopoly  of  trade  with  the  respective 
countries  indicated ;  but  the  objection  would  not  be  felt  to  be  the 
same  as  that  against  a  monopoly  at  home.  Finally,  in  1G23,  the 
great  Statute  of  Monopolies  was  passed,  just  after  the  famous  case 
of  monopolies  was  decided,  holding  that  such  were  against  the  com- 
mon law  of  the  Realm  and  prohibiting  the  king  from  dispensing 
with  the  common  law  by  granting  licenses.  This  statute,  21 
James  I,  is  extremely  like  a  modern  anti-trust  statute  in  that  it  gives 
remedy  in  double  or  treble  damages  to  anybody  injured,  and  makes 
exception  of  copyrights  and  certain  corporation  charters. 

It  may  fairly  be  stated,  therefore,  that  the  principles  against  what 
we  now  call  "trusts,"  against  monopoly  and  against  combinations 
to  fix  prices,  limit  output,  o/ secure  a  monopoly  in  restraint  of  trade, 
are  derived  from  fundamental  principles  of  the  common  law.  The 
modern  statutes  against  trusts,  while  possibly  necessary  as  to  a 
Federal  statute,  there  being  no  Federal  common  law  in  civil  matters, 
and  therefore  comprising  but  the  enunciation  of  common-law  prin- 
ciples as  to  interstate  commerce,  with  the  imposition  of  a  penalty 
and  the  provision  of  remedies,  were  not  really  necessary  as  to  State 
Legislation.  Nearly  one-half,  indeed,  of  the  State  anti-trust  laws  have 

*  See  F.  J.  Stimson,  "American  Constitution,"  page  114. 


40  THE    AMERICAN    CONSTITUTIONS  [BOOK   I 

been  declared  unconstitutional,  either  by  the  U.  S.  Supreme  Court 
or  by  the  courts  of  the  State  enacting  them ;  while  the  half  that  is 
valid  hardly  do  more  than  enunciate  the  principles  of  the  common 
law.*  In  England  no  more  legislation  was  necessary.  The  Massa- 
chusetts Body  of  Liberties  copies  the  Statute  of  Monopolies  passed 
eighteen  years  before:  "No  monopolies  shall  be  granted  or  allowed 
amongst  us  but  of  such  new  inventions  that  are  profitable  to  the 
country  and  that  for  a  short  time."  And  finally  the  American 
principle  against  class  legislation,  of  which  in  our  next  chapter. 

*  See  Book  III,  Art.  58.  The  East  thus  anticipating  the  principle  of  stock 
India  Co.,  chartered  under  Elizabeth,  assessments;  and  tlie  charter  gave  a 
is  said  to  have  been  the  first  trading  monopoly  of  trade  "  into  those  parts 
corporation  in  tlie  modern  sense;  that  limited  by  their  incorporation."  In  the 
is,  an  association  for  making  money  same  year  is  a  charter  to  merchants 
and  dividing  the  profit,  although  it  trading  in  the  Russian  seas,  and  in 
allowed  the  members  to  trade  sepa-  1650  a  charter  to  the  weavers  of  Nor- 
rately.  In  1643  came  the  charter  to  wich  giving  power  to  adopt  by-laws, 
the  merchant  adventurers  of  England  to  impose  fines  for  impf-rfect  w'eav- 
"  for  the  better  maintenance  of  trade  "  ing  —  lately  forbidden  by  statute  in 
closing  with  the  words  "  said  Fellow-  Massachusetts,  which  statute  was  de- 
ship  shall  be  a  corporation  and  shall  clared  unconstitutional  (Croth  v.  Perry, 
have  power  to  levy  moneys  on  the  155  Mass.  117).  A  few  years  later 
members  of  the  corporation  and  other  come  the  Hudson's  Bay  and  Greenland 
goods  for  their  necessary  charge  and  Companies, 
maintenance    of    their    government," 


CHAr.    VIl]  OTHER   CONSTITUTIONAL   RIG  UTS  41 


CHAPTER  VII 

OTHER   CONSTITUTIONAL   RIGHTS 

There  are  several  other  cardinal  rights  of  less  importance  than 
those  to  liberty,  which  may  be  considered  as  consequences  either 
of  it  or  of  the  right  to  law.  All  of  these  have  been  preserved,  and 
many  of  them  amplified,  in  our  Constitutions;  while  hardly  a  new 
one  is  added,  unless  it  be  the  right  to  reputation,  which,  indeed, 
Blackstone  mentions  as  a  cardinal  right,  and  the  recently  felt  notion 
of  right  to  privacy  (this  is  recognized  in  a  very  striking  manner  in 
the  Constitution  of  Washington  ^),  and  the  provision  against  im- 
prisonment for  debt  which  appears  in  the  jNIassachusetts  Body  of 
Iviberties  and  in  a  few  State  Constitutions.  But  most  important  of 
all,  the  principle  against  class  legislation  found  in  the  Virginia 
Bill  of  Rights  (Clause  4),  "That  no  man  or  set  of  men  are  en- 
titled to  exclusive  or  separate  emoluments  or  privileges  from  the 
community,"  the  Fourteenth  Amendment,  §  1,  that  "no  State  .  .  . 
shall  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws,"  and  much  more  definitely  expressed  in  the  State 
Constitutions;^  an  American  principle,  for  the  great  clause  of 
Magna  Carta,  extending  the  law  of  the  land  to  all,  is  no  guaranty 
against  class  legislation  contained  in  an  Act  of  Parliament. 
Closely  allied  to  this  is  the  provision  against  hereditary  privi- 
leges, titles  of  nobility,  etc.,  contained  in  both  State  and  Federal 
Constitutions,  and  deemed  of  such  importance  that  it  is  forbidden 
in  the  Federal  Constitution  to  the  States.^  It  is  difficult  to  see 
how  the  provision  in  the  North  Carolina  and  other  Southern 
Constitutions  against  hereditary  privileges  is  consistent  in  prin- 
ciple with  that  extending  an  hereditary  right  to  vote.*  Equal  law 
is  furthermore  extended  to  all  races  ^  and  sexes.^  American 
Constitutions,  of  course,  prohibit  slavery,  but  so,  in  modern  times, 
does  the  English.    A  striking  statement  of  the  principle  of  equality 

'  See  Book  III,  §  71.  *  Fourteenth    Amendment;      Book 

'  See  Book  III,  §§  16,  395.  Ill,  §§  20-21. 

«  See  Book  III,  §  17.  "  Book  III,  §§  23-27. 

*  See  Book  III,  §  246. 


42  THE   AMEKICAN   CONSTITUTIONS  [BOOK   I 

before  the  law  will  be  found  in  the  Massachusetts  Body  of  Liberties, 
Clause  2.^ 

The  principle  of  equality  by  birth  declared  in  the  Virginia  Bill 
of  Rights  and  the  Declaration  of  Independence  is  not  carried  into 
the  Federal  Constitution,  though  it  is  found  in  nearly  all  State 
Constitutions.^ 

The  right  to  bear  arms  was  inherent  in  the  English  people;  in 
fact,  under  early  laws,  was  compelled.  The  barons  were  required 
to  support  their  king  in  war  but  they  early  complained  against  be- 
ing led  out  of  the  kingdom,  and  King  John's  insistence  upon  this 
was  the  principal  cause  leading  to  Runnymede.  This  right  is  ex- 
pressed in  every  American  constitutional  document  as  well  as  all 
the  State  Constitutions.  On  the  other  hand,  the  objection  to  mer- 
cenaries or  standing  armies  seems  to  have  always  existed.  There 
were  practically  none  in  England  until  the  time  of  the  Stuarts, 
(though  Italian  and  German  —  "  Brabazon  "  —  mercenaries  were 
first  employed  in  1449,  to  suppress  Jack  Cade)  a  cause  to  which 
most  students  of  constitutional  history  attribute  the  preservation  of 
English  freedom  and  parliamentary  government. 

The  objection  to  the  use  of  the  army  to  establish  military  tribunals 
or  to  overawe  the  people  is  apparent  in  a  long  range  of  constitutional 
documents  and  statutes.  Correlative  to  this,  but  having  its  source 
also  in  the  right  to  the  common  law,  are  many  statutes  in  early  times 
protesting  against  the  laws  of  the  Forest ;  also  the  general  prohibition 
of  martial  law,  —  the  English  and  American  principle  being  that  the 
military  must  never  be  independent  of  or  superior  to  the  civil  power.^ 

The  militia,  the  ancient  defence  of  the  realm,  we  find  revived  only 
seventeen  years  after  the  conquest;  and  the  support  of  the  militia, 
or  even  of  the  army  and  navy,  is  therefore  entrusted  to  the  legisla- 
tive branch  both  in  our  Federal  and  in  the  State  governments,  their 
command  only  entrusted  to  the  Executive,  but  his  use  of  the  army 
is  carefully  limited  to  definite  emergencies  (invasion,  insurrection, 
etc.) ;  and,  as  between  the  State  and  the  Federal  power,  the  President 
cannot  employ  the  State  militia  but  in  a  national  emergency,  nor 
Federal  troops  in  a  State  except  when  requested  thereto  by  the  legis- 
lative authority  thereof  —  save,  indeed,  where  necessary  to  main- 
tain the  functions  or  officers  of  the  Federal  Government,  or  when 

'  See  Book  II.,  Constitutional  Prin-  ^  See  Declaration  of  Independence, 
ciples.  Clause  16. 

*  See  Book  III,  §  11. 


CHAP.    VIl]  OTHER   CONSTITUTIONAL   RIGHTS  43 

the  State  Government  ceases  to  be  republican  in  form ;  but  of  that 
it  does  not  appear  from  the  Constitution  whether  Congress  or  the 
President  is  to  be  the  judge. 

These  three  principles  will  be  found  recognized  in  every  one  of 
our  constitutional  documents^  both  English  and  American,  and  in 
all  the  State  Constitutions.^  Even  military  law,  the  necessary  regula- 
tions for  the  government  of  the  army  and  navy  in  actual  service,  is 
only  made  possible  in  England  by  an  annual  re-enactment  of  the 
Mutiny  Act,  and  the  same  effect  is  secured  in  the  Federal  Constitu- 
tion by  the  provision  that  Congress  may  make  no  appropriation  for 
the  army  for  more  than  two  years.  The  right  to  bear  arms,  how- 
ever, does  not  prevent  laws  for  the  punishment  of  carrying  concealed 
weapons,  nor  does  it  authorize  bands  of  men  not  belonging  to  the 
militia  to  drill  or  parade  armed,  while  the  recent  provisions  in  some 
new  State  Constitutions  against  "Pinkerton"  men,  or  the  employ- 
ment of  private  armed  guards,  is  curiously  reminiscent  of  the  earlier 
English  statutes  against  "retainers."  ^ 

Of  the  other  rights  which  are  common  to  the  English  and  American 
Constitutions,  freedom  of  speech  may  be  first  mentioned,  which  arose 
very  early  as  to  members  of  Parliament  or  debates  in  Parliament; 
but  is  perhaps  not  otherwise  a  right  recognized  in  the  English  Con- 
stitution except  so  far  as  involved  in  the  political  right  of  assembly 
and  petition,  for  which  see  later.  It  is  recognized  as  a  general  right, 
however,  in  the  First  Amendment  to  the  Federal  Constitution  and 
in  all  the  State  Constitutions.  Freedom  of  speech,  in  political  matters 
at  least,  is,  however,  established  in  England,  and  freedom  of  the  press 
even  more  definitely,  so  that  a  man  is  able  to  write  what  he  will  on 
all  subjects,  being  only  responsible  for  libellous  matter.  There  is 
generally  no  distinction  between  the  two  rights  made  in  American 
Constitutions.^ 

The  important  political  right  of  assembly  and  petition  is  rather 
the  original  than  a  derivation  from  freedom  of  speech,  and  is  also 
related  to  the  general  political  rights  of  the  English  subject.  It  is 
recognized  first  clearly  in  the  Bill  of  Rights,  and  generally  in  Ameri- 
can Constitutions,*  and  forms  an  indispensable  part  of  the  political 
liberty  enjoyed  by  the  Anglo  Saxons.  Indeed  this,  with  the  right 
to  bear  arms,  has  always  been  the  essential  difference  which  has 

»  See  Book  III,  §§  62,  63,  290-295;         ^  See  Book  III,  §§  60,  61. 
Book  II,  Constitutional  Principles.  *  See  Book  III,  §  64;   U.  S.  C.  Amt. 

*  See  Book  III,  §  63,  note  5.  1. 


44  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

attended  revolutions  or  popular  reforms  in  England  from  other 
European  countries.  The  other  political  rights  are  mainly  the  great 
right  of  equal  representation  in  the  legislative  assemblies,  with  cor- 
related provisions  for  free  elections  and  for  the  judgment  of  dis- 
puted elections  by  the  legislative  body  itself,  not  by  the  Executive, 
nor  even,  unless  the  Legislature  so  will,  by  the  courts.'  The  re- 
quirement that  elections  shall  be  free  appears  in  the  Statutes  of  the 
Realm  as  early  as  1571,  but  is  finally  embodied  in  the  Bill  of  Rights 
as  well  as  in  the  Virginia  and  Massachusetts  Constitutions.  There 
appears  to  be  no  English  constitutional  principle  respecting  the 
right  of  suffrage,  which,  from  having  been  early  shared  in  by  all 
freemen,  was  in  1429  limited  to  the  forty  shillings  freeholders;  but 
it  is  carefully  provided  for,  to  a  limited  extent  saving  property  rights, 
in  the  Virginia  and  INIassachusetts  Bills  of  Rights ;  and  in  the  Federal 
Constitution,  providing  that  all  electors  who  vote  for  the  lower 
house  of  the  State  Legislature  shall  vote  for  the  President;  and  as 
to  race  distinctions,  or  even  educational  or  property  qualifications, 
in  the  Fifteenth  and  Fourteenth  Amendments  respectively.  Hardly 
any  property  and  few  educational  qualifications  remained  in  the 
State  Constitutions  a  few  years  ago;  but  there  is  a  tendency  to 
re-impose  them." 

Having  thus  established  the  right  of  the  people  to  be  represented 
in  a  legislative  body  and  having  established  in  effect  the  right  of 
that  body  to  participate  in  all  law-making  and  to  originate  all  laws 
imposing  taxes,  it  only  remained  for  our  ancestors  to  prevent  the 
suppression  of  the  legislative  body  by  the  Executive,  or  "personal 
government"  attempted  without  the  Parliament  or  without  calling 
the  Legislature  together.  This  principle  first  appears  in  the  statutes 
in  1330  and  is  embodied  in  the  English  Constitution  in  the  Bill  of 
Rights,  and  in  the  Federal  Constitution,  Art.  I,  §  4,  requiring  annual 
sessions  of  Congress. 

The  important  new  American  principles  of  government,  the  sepa- 
ration of  the  powers,  and  the  effect  of  the  written  constitution  on 
statutes,  have  been  discussed  in  an  earlier  chapter.  The  former 
principle  appears  in  the  Federal  and  in  all  the  State  Constitutions 
with  the  striking  exception,  to  which  attention  was  called  in  a  recent 
decision  of  the  Court  of  Appeals  of  that  State,  of  New  York.  The 
expression  of  it  in  the  Virginia  Bill  of  Rights  is  interesting;  and 
they  attempt  to  engraft  upon  it  the  possibly  more  debatable  prin- 

'  See  Book  III,  §  270.  *  See  Book  III,  §§  240,  245,  246. 


CHAP.    VIl]  OTHER    CONSTITUTIONAL   RIGHTS  45 

ciplc  of  rotation  in  office.  The  exclusion  of  the  judicial  branch  from 
this  last  principle  is  equally  striking  and  counter  to  prevailing  ten- 
dencies to-day.'  The  more  abstract  provisions  of  American  con- 
stitutional documents  supposed  at  the  time  to  embody  new  political 
principles  -  have  so  far  hardly  resulted  in  more  than  the  sounding 
phrases  in  which  they  are  couched,  while  generally  principles  em- 
bodying the  idea  that  governments  are  formed  for  the  people  and 
by  the  people,  that  all  officers  are  but  the  servants  of  the  people, 
and  that,  when  the  government  fails  of  its  effect  in  protecting  natural 
rights,  the  people  may  and  should  alter  or  abolish  it,  —  have  hardly 
more  practical  result  in  constitutional  law  than  the  possibly  moral 
justification  of  a  future  revolution.^ 

The  last  important  addition  made  by  American  Constitutions  is 
perhaps  that  of  religious  rights  *  and  in  State  Constitutions,  educa- 
tion.^ The  former  is  not  completely  yet  a  constitutional  principle 
in  England,  —  for  there  is  still  an  established  Church,  —  and  its  ex- 
pression originated  with  the  Virginia  Bill  of  Rights,  though  there 
are  foreshadowings  of  religious  freedom  even  in  the  Massachusetts 
Body  of  Liberties.  The  inclusion  of  education  as  a  natural  right 
by  our  State  Constitutions  may  have  interesting  consequences,^  but 
the  Federal  Constitution  does  not  recognize  it.  The  former  principle 
prevents  any  discrimination  against  any  person  on  account  of  his 
religion  as  well  as  any  sectarian  appropriation  or  established  church, 
but  it  does  not  justify,  under  the  guise  of  religious  belief,  crime  or 
practices  inconsistent  with  the  safety  or  well  being  of  the  State. 

The  last  significant  innovation,  and  not  the  least  important,  made 
by  American  Constitutions,  is  the  prohibition  of  general  warrants, 
the  exercise  by  the  government  of  the  power  to  search  places  or 
seize  persons  with  no  specific  charge  and  without  a  sworn  warrant 
specifying  an  offence,  the  persons  to  be  seized,  and  the  objects  of 
seizure.  This  principle,  originating  in  Massachusetts  ten  years 
before  the  Revolution,^  became  later  (1765)  indeed  a  constitutional 
principle  in  England,  but  is  not  of  course  expressed  in  any  of  the 

'  See  Book  II,  Virginia  Bill  of  Rights         «  See  Book  III,  §§  50,  190,  note  9. 
§  5.  '  See  Book  III,  §  71,  note  10.     But 

^  See  Book  III,  §§5,  185.  see  Petition  of  Right,  Clause  2,  com- 

^  See  Book  II,  Constitutional  Docu-  plaining    of    commissions    directed    to 

ments,  Chapter  III,  Clause  c,  Theory  commissioners  to  raise  moneys  for  the 

of    Government;     and    Chapter    VIII  king,  who    administered    an    oath  not 

below.  warrantable  by  the  laws  or  statutes  of 

*  See  Book  III,  Art.  4.  the  realm. 

«  See  Book  III,  Art.  5. 


46  TIIK   AMERICAN    CONSTITUTIONS  [cOOK   I 

so-called  constitutional  documents,  which  are  usually  considered 
as  terminating  with  the  Act  of  Settlement.  It  is  most  strongly  ex- 
pressed, however,  both  in  the  Virginia  and  Massachusetts  Bills  of 
Rights  and  in  the  United  States  Constitution,  Fourth  Amendment. 
It  is,  of  course,  closely  connected  with  the  right  of  a  person  not  to 
be  compelled  to  give  self-criminating  evidence,  but  it  has  a  far 
broader  historical  connection  with  the  general  objection  of  the  Eng- 
lishman to  inquisitions,  visitatorial  expeditions  by  king  or  Crown 
officer,  going  straight  back,  indeed,  to  the  great  clause  of  Magna 
Carta.  A  man's  private  affairs  cannot  be  looked  into  nor  his  papers 
searched  except  in  judicial  proceedings  or  upon  the  charge  of  some 
definite  offence;  while  even  then  he  may  refuse  either  to  testify  or 
furnish  documentary  evidence  if  it  may  reveal  him  guilty  of  a  criminal 
offence,  unless  under  a  law  guarantying  him  immunity  not  only  for 
the  offence  charged,  but  for  all  offences  that  may  be  revealed  by  the 
process  directly  or  indirectly,  either  in  that  court  or  in  any  other 
court  of  the  same  sovereign.  The  immunity  does  not,  however, 
have  to  be  extended  to  courts  of  another  State  or  country,  or  even, 
in  the  Federal  courts,  to  those  of  any  State,  and  vice  versa;  nor, 
it  appears,  is  the  privilege  one  which  may  be  claimed  by  corpora- 
tions. On  the  other  hand,  the  privilege  undoubtedly  relates  only 
to  the  danger  of  a  criminal  prosecution,  and  can  hardly  be  extended 
to  cover  a  general  right  to  privacy,  either  of  person  or  possessions, 
however  much  that  is  to  be  desired. 


CHAP.   VIIl]  RIGHTS   OF   GOVERNMENT  47 


CHAPTER   YIII 

RIGHTS   OF   GOVERNMENT 

In  England,  if  there  be  a  sovereign,  it  was  the  king  in  Parlia- 
ment and  is  now  practically  the  House  of  Commons.  In  either 
case,  not  the  people,  though  they  elect  their  representatives;  for 
Parliament  can  change  either  law  or  form  of  government.  In 
America,  by  definition  of  our  Constitution,  it  is  the  people;  though 
refiners  in  substance  may  trace  it  back  to  a  majority  of  an  assem- 
blage of  three-fourths  of  the  States,  by  which  alone  the  Constitution 
can  be  amended.'  This,  however,  seems  rather  like  casuistry;  while 
the  people  provided  that  their  written  Constitution  could  only  be 
amended  regularly  in  that  way,  it  equally  remains  true  that  the 
people  themselves  might  at  any  time  amend  it  by  a  successful  con- 
stituent assembly;  it  hardly  needs  the  assurances  of  the  Declara- 
tion of  Independence  and  other  constitutional  documents  ^  to  assure 
that  principle.  We  may  therefore  lay  down  the  proposition  that  all 
political  power  is  inherent  in  the  people,  that  governments  derive 
their  just  powers  from  the  consent  of  the  governed,  except,  indeed, 
when  we  exercise  territorial  jurisdiction,  and  that  the  people  may 
alter  the  government  when  it  fails  of  its  design  or  ceases  to  be  Re- 
publican in  form.^  The  Declaration  of  Independence  is  not  part  of 
the  American  Constitution,  although  printed  at  the  beginning  of  the 
Revised  Statutes  of  the  United  States,  before  the  Constitution  itself, 
and  although  certain  of  the  Acts  of  Congress  admitting  territories 
provide  that  they  shall  adopt  Constitutions  in  accordance  with  its 
principles.  However,  therefore,  it  may  be  questionable  in  abstract 
theory,  at  least  for  States  of  the  Union,  it  is  true  that  the  people  are 
sovereign. 

Representative  government  was  a  mediaeval  —  in  the  forms  it  has 
most  successfully  developed,  an  English  —  invention.    It  did  away 

»  See  James  B.  Thayer,  "  Legal  Es-        '  See  Book  III,  §  181. 
says,"  pp.  200-204.  »  See  Book  III,  §§  181,  182,  183. 


48  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

with  the  pure  democracy  to  which  "legislation  by  the  people  "  — 
initiative  and  referendum  '  —  would  seem  to  return.  Therefore  they 
found  it  necessary  to  provide  particularly  for  the  great  Council  of 
the  Realm,  later  Parliament,  later  the  representative  House  of  Com- 
mons; and  for  its  frequent  meeting.  As  early  as  1330  we  find  a 
statute  requiring  annual  sessions  of  Parliament;  in  13G2  the  prin- 
ciple is  repeated.  Triennial  Acts  follow,  in  1G41  and  IGdi;  and  in 
1716  the  duration  of  Parliament  is  extended  to  seven  years.  With 
us  the  Virginia  Bill  of  Rights  expresses  the  doctrine  that  all  magis- 
trates or  officers  of  government  are  but  the  trustees  or  servants  of 
the  people,  and  the  Federal  Constitution  as  well  as  the  Bill  of  Rights 
of  Massachusetts  requires  that  legislative  bodies  should  meet 
annually. 

It  follows  that  elections  must  be  free  and  that  Parliament  must 
sit  without  dictation  of  the  executive  branch,'  the  efforts  of  the 
kings  to  resist  this  having  proved  futile.^  The  long  attempt  of  the 
Executive  to  make  laws  by  orders  in  Council  or  by  proclamation,  or 
indirectly  by  suspending  laws  already  existing,  may  be  traced  through 
the  history  of  the  middle  centuries  until  they  ended  in  the  Bill  of 
Rights.*  It  is  now  an  established  constitutional  principle  that  the 
Executive  can  neither  suspend  a  law  nor  suspend  a  penalty  nor  even 
pardon  an  offence  in  anticipation  of  trial. 

The  history  of  suffrage  may  be  summed  up  in  the  statement  that 
originally  all  free  men  had  the  vote ;  that  is  to  say,  when  there  was 
a  vote.  In  early  times  of  course  only  the  peers  of  the  realm,  the 
barons  or  tenants  in  chief,  came  to  Parliament.  Beginning  with  the 
time  of  JNIagna  Carta  we  may  trace  the  practice  of  summoning  rep- 
resentative commoners  by  general  writ;  then  for  two  centuries  we 
find  indirect  general  suffrage  through  the  County  Courts;  but  in 
1429  we  find  a  disfranchizing  act,  restricting  the  voting  qualifica- 
tions to  forty  shillings  a  year  freeholders,  which,  in  England,  has 
never  been  entirely  abolished  since.  In  the  United  States  we  have, 
since  the  Fourteenth  Amendment,  and  under  State  laws,  manhood 
suffrage  without  distinction  of  race ;  although  property,  educational, 
or  other  distinctions  are  allowed,  subject  only  to  the  consequent 

*  See  infra,  Chapter  IX;  Book  III,  *  See    "Historical    Digest,"    Annis 

§  309.     The  early  system  was  of  course  1275,  1407,  1485,  1707. 

the    primary    assembly    or   folk-mote,  *  Ibid.,  Annis  1539,  1609. 

etc.     Early  European  prototypes  dis-  *  Ibid.,     Annis    1407,    1414,    1485, 

appeared;  only  the  English  Parliament  1539,  1609.     Stimson  "The  American 

endured.  Constitution,"  p.  102. 


CHAP.    VIIl]  RIGHTS   OF   GOVERNMENT  49 

diminution  of  representation  in  the  Federal  Congress.*  The  effort 
to  control  elections  and  candidates  was,  indeed,  made  in  England, 
especially  by  James  I,  but  was  early  abandoned,  and  the  principle 
exists  there  as  here  that  only  the  legislative  body  itself  can  judge  of 
the  qualifications  returns  of  its  members  unless,  indeed,  it  choose 
to  delegate  that  power  to  the  courts."  Legislative  sessions  must 
(except  executive  sessions  of  Senate),  with  us,  be  open;  not  neces- 
sarily so  in  England ;  but  in  both  countries  the  legislative  body  has 
power  to  protect  itself  against  contempt;  and  of  this  it  may  not  be 
deprived.  It  may  expel  a  member  and  it  may  punish  a  person  not 
a  member,  but  probably  in  America  only  by  fine  or  imprisonment, 
the  latter  not  to  last  beyond  the  duration  of  the  session.  Speech  in 
the  Legislature  is  free  in  both  countries,  and  the  members  them- 
selves are  privileged  from  arrest  except  for  felony  or,  in  England, 
on  civil  process,  which  privilege  early  extended  to  their  servants 
and  members  of  the  household ;  not,  however,  to  attachment  for 
contempt  of  habeas  corpus.^  The  principle  of  freedom  of  elections 
was  reiterated  in  the  English  Bill  of  Rights  and  is  preserved  in 
American  constitutional  documents,*  and  our  State  Constitutions 
usually  require  vote  by  ballot  and  secrecy  of  the  ballot,  though  by 
recent  amendments  voting  machines  may  be  used. 

Officers  of  the  government  are,  as  has  been  said,  the  trustees  or 
servants  of  the  people.  They  may  not  hold  place  in  more  than  one 
of  the  three  departments  or,  with  us,  usually,  in  both  State  and 
Federal  preferment.  They  are  sworn  to  support  the  Constitution  of 
the  United  States  and  must  give  attention  to  the  duties  of  their  office 
and  not  farm  it  out  to  others.  This  principle,  dating  from  the  peti- 
tion of  thirty-one  articles  to  Henry  IV  in  1406,  is  copied  in  some 
modern  State  Constitutions.^  They  may  be  impeached  by  the  lower 
house  for  crime  or  mere  maladministration,  which  impeachment  is 
tried  by  the  upper  house;  and  no  pardon  is  available  but  they  are 
still  liable  to  trial  at  the  common  law.® 

The  right  of  assembly  has  been  already  discussed.''  By  an  Act 
of  1549  unlawful  assemblies  of  twelve  to  alter  laws  or  abate  prices 
were  made  unlawful,  which  apparently  gave  rise  both  to  the  modern 
riot  acts  and  to  the  notion  that  strikes  were  criminal.     This,  liow- 

'  See  Book  III,  §§23,  240,  245,  246.         "See    "Historical   Digest,"    Annis 

'  See  Book  III,  §  270.  1485,   1512,   1581;  Act  of  Settlement, 

'  See  Book  III,  §  273.  Clause  8. 

*  See  Book  III,  §  237.  '  See  Chapter  VII. 

«  See  Book  III,  §  215. 

4 


50  THE    A.MKHICAN    CONSTITUTIONS  [bOOK    I 

ever,  has  iiotliin*^  to  do  with  tlie  poUtical  right  of  assembly.  In  the 
Massachusetts  Body  of  Liberties,  Chiuse  12,  every  man  shall  have 
liberty  to  come  to  any  public  court,  council,  or  town  meeting,  and 
tliere  by  speech  or  writing  move  any  lawful,  seasonable,  and  material 
(|uestion,  so  it  be  done  in  convenient  time,  due  order,  and  respectful 
manner.  Bowen  says  that  this  right  was  not  established  in  England 
until  the  Bill  of  Riglits  in  IGSO,  nearly  fifty  years  later.' 

The  early  English  statutes  protecting  the  subject  against  attainder 
or  trial  for  treason  -  and  requiring  two  witnesses  to  the  same  overt 
act  are  copied  in  American  constitutional  documents,  Federal  and 
State,  and  extended  in  the  Massachusetts  Body  of  Liberties  (Clause 
47)  to  capital  ofl'ences. 

Finally,  the  most  important  of  all  our  governmental  principles, 
that  of  the  separation  of  the  powers  into  three  departments,  is  ex- 
presslv  recognized  in  both  Federal  and  all  State  Constitutions,  except, 
possibly.  New  York,  though  by  a  recent  decision  of  the  Supreme 
Court  of  the  United  States,  it  is  not  guaranteed  by  the  Federal  gov- 
ernment to  a  citizen  of  a  State  in  the  State.  We  have  already  dis- 
cussed this  principle  as  one  of  the  two  most  important  American 
constitutional  innovations.  Nevertheless,  there  are  foreshadowings 
of  it  in  English  constitutional  documents  or  statutes  outside  of  the 
writings  of  theorists.  Thus,  in  1615,  the  attempt  of  the  Executive 
to  control  the  judicial  branch  led  to  the  famous  rebuke  of  Chief 
Justice  Coke.  He  was  indeed  removed,  and  from  that  time  until 
the  Civil  War  judges  held  office  at  the  king's  pleasure,  but  in  the 
Act  of  Settlement  it  was  for  the  first  time  embodied  in  writing  that 
their  tenure  must  be  for  life,  and  their  remuneration  not  dependent 
on  the  caprice  of  the  king.  This,  also,  has  been  copied  in  the  Federal 
Constitution  and  originally  in  all  the  State  Constitutions.^  The  States 
have  indeed  largely  departed  from  this  principle  since,  in  so  far  as 
their  appointment  is  concerned,  judges  being  now  elective  in  almost 
all,  but  their  compensation  continues  to  be  fixed,  not  to  be  changed 
by  the  legislature  and  they  may  not  be  removed  by  the  Executive.* 
The  Declaration  of  Independence  stated  the  principle  clearly  when 
it  complained  of  King  George  that  he  made  judges  dependent  on 
his  will  alone  for  the  tenure  of  their  offices  and  the  amount  and  pay- 

*  See  Book  II,  Constitutional  Docu-         '  See  Smith,    "The  American  Con- 

ments;   Bill  of  Rights,  Clause  5.  stitutions,"  Philadelphia,  1797. 

2  See    "Historical    Digest,"    Aymo        *  See  Book  III,  §§  206,  660. 
1552. 


CHAP.   VIIl]  RIGHTS   OF   GOVERNMENT  51 

ment  of  their  salaries.  Furthermore,  that  he  was  guilty  of  usurpation 
in  that  he  refused  his  assent  to  laws  and  forbade  the  passing  of  laws 
until  his  assent  should  be  obtained,  and  refused  to  pass  other  laws 
unless  the  people  would  relinquish  the  right  of  representation,  "a 
right  inestimable  to  them  and  formidable  to  tyrants  only,"  and  in 
the  Virginia  Bill  of  Rights  (Clause  5)  we  find  the  principle  first  ex- 
pressed that  the  legislative  and  executive  powers  of  the  State  should 
be  separate  and  distinct  from  the  judiciary,  and  the  two  first  should 
at  fixed  periods  be  reduced  to  a  private  station ;  which  principle  of 
rotation  in  office,  however,  is  expressly  declared  not  to  be  applicable 
to  the  judicial  branch. 

Nothing  remains  but  to  remark  of  the  American  Constitution  that 
it  creates  a  government  of  limited  powers  and  that  those  not  therein 
expressed,  however  usual  to  sovereignty  in  other  countries,  are  not 
given  to  the  present  government,  but  remain  with  the  people ;  that 
is  to  say,  the  people's  will  as  expressed  by  the  legislatures  of  three 
fourths  of  the  States  or  by  conventions  of  the  people  in  three  fourths 
thereof.  The  will  of  the  people  in  these  conventions  is  final,  —  higher 
than  any  other  governmental  authority,  requiring  not  the  consent 
of  the  Executive;  although  Abraham  Lincoln,  with  pardonable 
satisfaction,  appended  his  name  to  the  Thirteenth  Amendment 
abolishing  slavery.  And  our  government  must  be  republican  in 
form,  and  constitutional;  that  is  to  say,  it  must  protect  even 
minorities  or  individuals  in  certain  cardinal  rights.  "  Absolute, 
arbitrary  power  over  the  lives,  liberty,  and  property  of  free  men 
exists  nowhere  in  a  republic,  not  even  in  the  largest  majority."  ^ 

1  See  Book  III,  §  182. 


52  THE   AMERICAN    CONSTITUTIONS  [BOOK   I 


CHAPTER  IX 

GOVERNMENT   ORGANIZATION 

This,  the  matter  usually  treated  of  in  constitutional  history,  we 
may  dispose  of  briefly.  The  main  distinction  of  the  American  Con- 
stitution, that  of  the  separation  of  the  powers,  we  have  been  com- 
pelled to  anticipate.  It  is  not  complete;  for  instance,  the  Executive 
has,  under  the  Federal  Constitution,  some  legislative  powers,  such 
as  the  veto;  and  during  his  term  of  office  a  certain  control  over  the 
judiciary,  by  his  jx»wer  to  appoint  and  promote ;  the  Senate,  in  its 
power  to  confirm  appointments  and  advise  and  consent  to  treaties, 
some  executive  powers ;  the  judicial  branch  alone  has  no  part  in  the 
other  two.^  But  in  England  there  is  no  clear  division,  nor  even  effort 
to  secure  it ;  though  the  tendency  of  history  has  been  in  that  direction 
and  many  of  the  evils  complained  of  by  the  people  have  resulted  from 
the  confusion  of  the  powers  or  their  usurpation  by  the  king  or  his 
officers.  Broadly  speaking,  English  history  has  gone  through  the  fol- 
lowing stages :  In  the  beginning  the  people,  all  freemen  who  chose  to 
attend  the  Great  Council,  made  the  laws;  later,  after  the  attempt  to 
usurp  the  law-making  power  failed  under  the  Norman  and  Angevin 
kings,  they  were  made  by  the  king  in  Parliament ;  later  the  king  tried 
to  secure  legislative  power  to  the  king  in  Council.  In  the  last  stage, 
the  power  went  back  absolutely  to  Parliament  and  practically  to  the 
House  of  Commons:  more  practically  still,  to  an  inner  committee  of 
the  Cabinet  of  the  party  in  power,  just  as  with  us,  short  of  a  great 
popular  movement,  the  real  power  of  shaping  ordinary  legislation 
rests  with  the  Speaker  of  the  House.  English  constitutional  history 
clearly  establishes  two  or  three  other  principles :  That  the  king  can 
neither  make  laws,  nor  suspend  laws,  nor  grant  pardons  in  advance 
for  a  crime  or  breach  of  the  law,  nor  ever  in  cases  of  impeachment. 
The  first  and  the  last  are  expressed  clearly  in  the  Federal  Constitu- 
tion, and  it  might  be  wished  that  the  other  two  were  also.     The 

^  It  has  been  claimed  by  Mr.  Hearst  this  is  not  the  correct  view.  See 
and  others  that  the  power  to  declare  a  p.  8,  supra;  Stimson's  "The  American 
law  unconstitutional  is  legislative,  but   Constitution,"  pp.  7-10. 


CHAP.    IX]  GOVERNMENT   ORGANIZATION  53 

power  of  suspending  laws  or  their  application,  or  agreeing  not  to 
prosecute  in  certain  cases  or  to  pardon  certain  offenders,  is  a  danger- 
ous one  in  the  hands  of  the  Executive,  Moreover,  there  is  an  in- 
creasing tendency  to-day  in  Congress  to  grant  legislative  power  to 
the  Executive  or  to  boards  or  commissions  of  his  appointment. 
Notably  has  this  been  done  in  recent  years  in  the  case  of  making 
treaties,  fixing  customs  duties,  the  rates  of  railways,  and  in  the  con- 
trol of  corporations,  —  all  properly  legislative  matters.  The  excuse 
made  is  that  Congress  but  declares  the  general  principle,  and  that 
the  act  of  the  president,  for  instance,  in  finding  a  state  of  affairs  to 
exist  upon  which  he  may  ratify  a  treaty  or  proclaim  a  commercial 
arrangement,  is  merely  ministerial.  An  example  of  the  length  to 
which  this  theory  may  be  carried  is  found  in  the  recent  railway 
regulation  act  or  Hepburn  Bill,  where  Congress  merely  proclaims 
that  the  rates  shall  be  reasonable  and  without  discrimination,  — • 
both  mere  expressions  of  the  common  law,  —  and  leaves  the  deter- 
mination of  what  is  reasonable  between  the  Interstate  Commerce 
Commission  and  the  Supreme  Court,  neither  of  them  legislative 
bodies.  The  common  law  may,  indeed,  be  decided  by  a  judicial 
body;  but  it  is  difficult  to  see  why  the  alteration  of  the  common  law 
is  not  legislation.  When,  therefore,  the  Commission  fix  a  "just  and 
reasonable"  rate,^  if  they  are  applying  the  common  law,  their  act  is 
judicial ;  if  they  are  fixing  other  standards,  it  is  legislative.  Federal 
judges  have  consistently,  from  the  beginning,  refused  to  exercise 
other  than  judicial  functions,  though  they  have  accepted  functions 
which  are  in  a  sense  judicial  but  were  not  conferred  by  the  Consti- 
tution ;  as,  notably,  in  the  Venezuela  arbitration  and  in  the  Electoral 
Commission  of  1884.  Recent  State  Constitutions  express  this  point 
particularly,  independent  of  the  usual  section  concerning  separation 
of  the  powers.^  It  may  be  urged  in  objection  to  the  too  frequent 
invocation  of  the  courts  in  trade  disputes  that  they  tend  to  make  the 
courts  take  part  in  the  administration  of  affairs.^ 

In  England  for  a  time  it  was  urged  that  the  king  might  make 
laws  punishing  offences  which  were  mala  in  se,  or  might  increase 
penalties  in  such  cases,  or  suspend  laws  generally  directed  at  things 
not  mala  in  se;  but  it  may  be  doubted  if  much  be  left  of  that  dis- 
tinction to-day.  Somewhat  analogous  to  it,  however,  is  the  growing 
practice  of  leaving  to  the  president  or  the  attorney-general  or  other 

'  U.  S.  Act  of  February  4,  18S7,  as         ^  See  Book  III,  §§  200  n.,  650. 
amended  June  29,  1906,  §  15.  ^  See  above,  Chapter  IV. 


54  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

oflicers  to  determine  what  corporations  or  combinations  arc  unlawful 
untler  Federal  legislation,  or  otherwise,  when  in  principle  or  in  out- 
ward form  they  may  all  be  the  same. 

Other  examples  of  the  confusion  of  the  departments  in  England 
may  be  instanced  in  the  usurpation  by  the  Star  Chamber,  later  the 
Privy  Council,  of  executive  and  judicial  functions;  it  is  significant 
that  the  "Orders  in  Council"  '  survived  to  be  a  principal  cause  of 
the  War  of  1812.  It  may  be  questioned  whether  Parliament  to-day 
would  not  interfere,  were  such  orders  attempted.-  The  interference 
of  the  king  with  legislation  bv  dictating  to  Parliament  or  even  bv 
his  personal  presence,  notable  under  Henry  VIII  through  Cardinal 
Wolsey,  and  by  Charles  I  himself,  is  familiar  to  all  readers  of  history ; 
and  his  attempt  to  secure  the  opinion  of  judges  in  advance  of  their 
decision,  or  even  to  dictate  and  compel  them  to  decide  in  a  certain 
way,  as  well  as  the  practice  of  attainting  juries,  has  been  discussed 
elsewhere.^  James  I  also  sat  personally  in  court,  but  was  told  by 
the  judges  he  could  not  deliver  an  opinion.* 

The  judicial  power  has  been  broadly  discussed  above.^  Usurpa- 
tion by  the  judicial  branch  has  never  existed  in  this  country  nor  has 
it  been  complained  of  since  the  time  of  Thomas  Jefferson ;  nor  ever, 
as  to  common-law  judges,  in  England;  except,  indeed,  by  James  I, 
who  complained  that  "  The  courts  of  common  law  had  grown  so 
vast  and  transcendent  as  to  meddle  with  the  king's  prerogative."  ^ 

The  executive  power,  while  probably  it  was  intended  by  Hamil- 
ton and  others  to  be  given  to  the  president  in  much  the  shape  that 
it  was  enjoyed  by  a  constitutional  English  king,  nevertheless  reveals 
striking  differences  in  the  two  Constitutions.  Indeed,  our  Supreme 
Court  has  remarked  more  than  once  that  the  American  president  is 
not  a  king  even  for  four  years;  that  though  in  theory  he  exercise 
the  rights  of  an  English  sovereign  it  is  with  the  loss  of  many  a  flower 
of  the  English  king's  prerogative.  On  the  other  hand,  he  has  more 
powers  as  to  treaty  making,  more  powers  in  fact  (though  not  in 
theory)  as  to  making  war,  and  is  expressly  made  commander-in- 
chief  of  the  Army  and  Navy.     He  has  the  veto  power  which  has 

'  See  Declaration  of  Independence,         ^  Ibid.,  p.  100;  Book  III,  §  131. 
Clause  7,  and  IS:    "He  has  combined         *  Ibid.,  pp.  100,  101. 
witli  others  to  subject  us  to  a  juris-        *  See  Chapters   I,  II,  III,  IV,  and 

diction  foreign  to    our  Constitution."  more  particularly  throughout  the  foot- 

These   words  refer    to  the   Orders  in  notes  follo\\"ing  the  text  of  Book  III. 
Council.  "  Stimson,  "The  American  Consti- 

'  Stimson,     "The    American    Con-  tution,"  p.  118. 
stitution,"  pp.  102,  130. 


CIIAr.   IX]  GOVERNMENT   ORGANIZATION  55 

practically  passed  from  the  English  king's  prerogative,  and  most 
important  of  all,  he  appoints  all  Federal  officers,  even  the  judo-es. 
Practically  all  these  powers  are  exercised  in  England  by  the  lower 
legislative  house  through  its  committee,  the  Cabinet.  Moreover, 
they,  or  the  prevailing  majority,  in  effect  designate  the  prime  min- 
ister and  through  him  the  rest  of  the  Cabinet.  With  us  the  president 
appoints  them,  and  in  this  instance  at  least,  his  appointments  are 
nearly  always  confirmed.  Both  king  and  president  make  oath  that 
they  will  support  the  National  Constitution.  Neither  may  dismiss 
the  Legislature  (under  recent  practice,  at  least  in  England)  and  both 
may  call  it  together. 

The  American  president  is,  indeed,  liable  to  impeachment,  but  in 
England  the  Parliament  or  even  the  House  of  Commons  have  many 
times  claimed  the  power  of  deposition  which  is  very  nearly  expressly 
recognized  in  the  Act  of  Settlement;  indeed,  the  king  has  been  called 
but  the  personification  of  a  majority  in  the  House  of  Commons. 
Finally,  the  American  president  has  far  more  power,  even  under 
the  text  of  the  Constitution,  in  the  execution  of  the  laws  than  has 
the  English  king.^ 

Coming  to  the  State  Constitutions,  we  have  discussed  the  political 
powers  generally  in  Book  HI,  Part  2,  and  the  legislative  powder  in 
full  in  Part  3.  The  principle  of  representative  government  is  recog- 
nized in  all  Constitutions,  except  that  of  Oklahoma,  and,  by  recent 
amendments,  in  States  adopting  the  general  initiative.  Representa- 
tion must  generally  be  apportioned  according  to  population;  the 
separation  of  the  powers  is  most  carefully  provided  for,"  and  the 
constitution  and  functions  of  the  Legislature  are  the  same  as  in  the 
Federal  Constitution.  The  powers  of  the  governor  resemble  those 
of  the  president,  except  where  (as  in  war,  treaties,  etc.)  restricted 
by  the  Federal  power.  The  terms  of  office  are  usually  shorter,  and 
sessions  of  the  liCgislature  not  so  frequent  as  in  the  case  of  Congress.^ 
All  IvCgislatures  are  paid,  though  very  much  less  than  members  of 
Congress;  and  the  provision  in  the  Federal  Constitution  against 
plurality  of  office  is  much  extended,  even  so  far  as  to  forbid  in  most 
States  a  member  of  Congress  or  person  holding  any  lucrative  office 
under  the  United  States  from  sittino;  in  the  State  Legislature  or  beins: 
elected  as  governor.*    Conversely  in  New  York  and  Michigan,  no 

1  Stimson,   "The  American  Consti-         *  See  Book  III,   §  220;    Stimson's 

tution,"  pp.  164-166.  "American  Statute  Law,  Vol.  I,  §  220 

-  See  Book  III,  §§  200,  201.  (B). 
3  See  Book  III,  §§  203,  204. 


56  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

member  of  the  State  Legislature  can,  duriiifjj  his  term,  be  elected 
to  the  United  States  Senate;  and  in  New  ^ Oik  and  several  other 
States  a  iiuMnber  of  the  State  Legishitiire  takiii<^  any  United  States 
oliice  or  being  elected  to  Congress  vacates  his  seat.  Thus,  the  Eng- 
Hsh  principle  that  the  holder  of  a  Crown  office  may  not  sit  in  the 
House  of  Commons,  is  extended,  with  us,  to  the  holding  of  a  legis- 
lative function  in  both  sovereignties.  Practically  all  State  officers 
may  be  impeached  and  the  usual  English  constitutional  powers  are 
given  to  the  State  Legislatures.^  The  machinery  of  legislation  is 
much  the  same  and  the  constitutional  principle  that  all  revenue 
measures  must  originate  in  the  lower  house  and  be  for  the  general 
good  of  the  people  is  fully  recognized.^  The  veto  power  is  extended 
in  all  the  States  except  North  Carolina  and  Rhode  Island ;  usually 
in  the  same  terms  as  in  the  Federal  Constitution.^ 

But  by  far  the  most  important  innovation  in  the  government  or- 
ganization of  the  States  is,  of  course,  the  initiative  and  referendum, 
now  adopted  generally  under  the  Constitutions  of  seven  States,*  and, 
as  to  local  referendum,  on  certain  matters  of  debt  and  taxation,  in 
many  others.^  The  wise  modern  tendency  is  to  require  a  referendum 
as  to  all  acts  of  State,  county,  city,  or  town  government  creating  a 
municipal  debt  or  granting  a  public  franchise.  This,  however, 
though  similar  in  principle,  is  so  different  in  consequence  from  a 
broad  general  referendum  covering  all  legislation  of  any  sort,  espe- 
cially when  coupled  with  the  initiative  which  enables  the  people  to 
dispense  with  the  Legislature  entirely  or  even  to  amend  the  Constitu- 
tion by  direct  intervention  of  the  people,  that  the  narrower  referen- 
dum first  mentioned,  limited  to  certain  matters  affecting  local  in- 
terest, may  be  dismissed  from  our  further  discussion.  The  State 
initiative  is,  of  course,  direct  legislation  by  the  people;  and  this,  it 
must  be  noted,  is  no  new  thing,  but  merely  a  recurrence  to  primeval 
principles,  —  doing  away  with  that  invention  of  representative  gov- 
ernment which  has  served  the  English  people  well  for  a  thousand 
years  and  has  been  commended  as  their  peculiar  contribution  to 
pohtical  science.  Direct  legislation  early  existed  in  England,  at 
least  as  to  the  free  men  or  greater  barons;  indeed,  mention  is  made 
by  historians  of  a  Witenagemot  of  sixty  thousand  men  meeting  on 
SaUsbury  Plain  not  very  long  after  the  Conquest.^    The  inconven- 

»  See  Book  III,  §§  260,  270.  *  See  Book  III,  §  309. 

2  See  Book  III,  §§  300,  310.  «  See  Book  III,  §§  316,  363  and  372. 

3  See  Book  lU,  §  304.  «  Hannis  Taylor,  I,  240. 


CHAP.   IX]  GOVERNMENT   ORGANIZATION  57 

ience  and  expense  of  such  large  assemblies,  coupled  perhaps  with  the 
notion  of  greater  wisdom  in  their  chosen  representatives,  gave  rise  to 
the  device  of  representation.  It  is  difficult  to  see  why  the  objections 
of  a  thousand  years  ago  do  not  apply  to-day,  at  least  as  to  the  initia- 
tive, and  even  as  to  the  referendum.  The  inconvenience  of  referring 
all  laws  to  the  people  is  already  shown  in  the  usual  provision  that 
they  must  be  allowed  to  vote  on  each  amendment  to  the  Constitution 
separately,  and  that  not  more  than  two  or  three  amendments  may  be 
submitted  in  any  one  year ;  ^  for  submission  of  a  law  by  referendum 
is  practically  the  same  in  working  as  that  of  a  constitutional  amend- 
ment. Indeed,  we  already  have  the  principle  of  the  initiative  in  full 
operation  in  the  adoption  of  new  State  Constitutions ;  -  still  more  so 
when  the  State  Constitutions  require  the  submission  of  a  new  Con- 
stitution or  the  voice  of  the  people  as  to  whether  one  is  necessary, 
every  seven,^  ten,*  or  twenty  ^  years. 

One  of  our  political  parties  peculiarly  favors  the  referendum  and 
may,  perhaps,  even  adopt  it  as  applicable  to  Federal  legislation. 
There  is  no  logical  difficulty  as  to  this,  for,  after  all,  the  people  made 
the  Constitution  and  not  the  States;  to  the  people,  therefore,  may  be 
referred  both  any  amendment  to  the  Constitution,  and  any  law,  by 
permission  of  the  Constitution  when  amended  so  as  to  allow  the 
referendum.  Whether  such  a  system  would  be  workable  may  be 
told  better  when  we  have  the  experience  in  the  smaller  field  of  the 
States. 

The  objections  to  the  referendum  fall  into  three  arguments: 
First,  that  of  inconvenience  above  referred  to;  second,  that  it  takes 
away  responsibility  from  the  legislatures  to  the  extent  of  belittling 
both  their  personnel  and  their  ambition ;  third,  that  the  people  them- 
selves are  not  wuse  enough  or  competent  to  vote  directly  upon  laws. 
If  all  laws  are  to  be  subject  to  a  referendum,  the  legislature  becomes 
nothing  but  a  draughting  committee  for  which  it  were  better  to  sub- 
stitute a  mere  parliamentary  counsel.^  If,  on  the  other  hand,  the 
people  have  the  initiative  and  employ  it  generally,  it  is  hard  to  see 
that  any  function  remains  to  the  legislature  whatever. 

'  See  Book  III,  §  993.  of  experts,  and  the  adoption  of  the 

*  See  Book  III,  Art.  99.  practice  in  this  country  has  lately  been 
^  N.  H.,  see  Book  ill,  §  994.  recommended  by  Bryce.     Indeed,  the 

*  lo.  result  of  the  present  system  may  be 

*  Md.,  N.  Y.,  O.  seen  in  Oregon,  where  the  Secretary  of 

*  It  is  the  practice  in  the  English  State  complains  bitterly  of  the  form  in 
House  of  Commons  to  have  bills  which  laws  are  drawn  up  by  initiative, 
draughted  by  such  a  permanent  body 


58  TIIK   AMERICAN   CONSTITUTIONS  [BOOK   I 

Unfortunately,  our  experience  at  the  time  of  going  to  press  (Marcli, 
1008),  is  too  liiiiitfd  to  ciiahle  us  (o  ronii  a  jiid^^incnt  on  this  great 
c|nes(ion.  Sevou  States,  as  we  say,  have  adopted  the  referendum, 
but  three  ol"  them  <h(l  so  only  in  the  year  190(>.  The  Oregon  amend- 
ment was  itself  originated  by  initiative  petition  and  not  by  the  legis- 
lature; and  extends  the  general  referendum  to  items  or  parts  of  acts 
and  also  to  all  local  or  numicipal  legislation,  not  more  than  ten  per 
cent  of  the  voters  to  be  recjuired  for  the  referendum  or  fifteen  per  cent 
for  the  initiative.'  The  early  use  of  the  initiative  in  Oregon  is  in- 
structive. Under  it  the  Legislature  were  allowed  to  regulate  the 
binding  and  printing  of  State  documents  —  a  matter  of  comparative 
unimportance  —  and  free  passes  were  prohibited  to  railroads,  etc. ; 
but  the  enacting  clause  being  omitted,  this  latter  law  was  considered 
of  no  effect.  The  veto  of  the  governor  does  not  usually  extend  to 
measures  referred  to  the  people  by  initiative  or  referendum,  any 
more  than  it  would  to  constitutional  amendments. 

In  municipal  matters  the  referendum  is  making  much  more  rapid 
progress;  as  has  been  said,  that  sphere  is  peculiarly  appropriate  to 
it.  Indeed,  the  famed  system  of  municipal  government  in  New 
England,  the  town  meeting,  like  the  early  Witenagemot,  is  nothing 
but  the  initiative  and  referendum  combined  in  one  assembly.  As 
a  matter  of  fact,  however,  the  articles  in  the  w^arrant  are  shaped  by 
a  small  committee  of  the  town,  thus  resembling  bills  prepared  by  a 
legislature  or  draughting  committee  (the  Selectmen)  and  referred 
to  the  people  in  town  meeting.  Other  measures  than  those  recom- 
mended may,  however,  be  adopted  directly  at  such  town  meeting, 
which  w^as  thus,  until  the  initiative,  the  only  example  of  direct  legis- 
lation in  modern  times.- 

So  far  it  does  not  appear  that  the  referendum  makes  much  altera- 
tion in  legislation ;  though  of  course  the  fear  of  it  may  prevent  many 
laws  which  the  Legislature  might  otherwise  pass;  nor  does  it  appear 
that  measures  begun  by  the  initiative  are  much  more  likely  to  pass 
the  popular  suffrage  than  those  drawn  up  by  the  Legislature.  The 
practical  working  of  the  initiative  leaves,  as  has  been  said,  much  to 
be  desired.  A  constitutional  amendment  adopted  by  initiative  was 
not  even  printed  in  the  Oregon  Annual  Laws. 

*  Charles  Edward  Merriam,  in  N.  Y.  pal  referendum,  see  Delos  F.  Wilcox  on 

State  Library  Bulletin  No.  113,  Review  local   government,    printed   in   N.    Y. 

of  Legislation  for  1906.  State   Library   Review   of   Legislation 

^  For  a  full  discussion  of  the  munici-  for  1905,  p.  191. 


CHAP.   IX]  GOVERNMENT   ORGANIZATION  59 

A  more  radical  measure  still,  is  that  of  the  recall;  that  is,  any 
senator  or  representative,  or  possibly  even  a  judge  or  other  officer, 
may  be  instantly  retired  by  a  direct  vote  of  the  people.  As  to  this, 
and  indeed  the  referendum,  it  may  safely  be  said  that  the  laws 
should  be  very  careful  to  require  a  sufficiently  large  proportion  of 
the  total  vote.  The  writer  believes  the  most  serious  danger  of  the 
initiative  and  referendum  to  be  its  perversion  to  the  very  corrupt 
purposes  the  institution  is  designed  to  prevent.  It  would  be  easy 
enough  for  a  public  service  corporation,  directly  or  indirectly  con- 
trolling possibly  a  tenth  of  the  voters  of  an  entire  city,  to  propose 
complicated  laws,  by  initiative,  which  the  people  might  find  hard 
to  understand  or  in  which  they  would  take  little  interest;  and  so 
rush  them  through  a  popular  election  by  a  vote  of  their  tenth  of  the 
votes,  the  rest  of  the  people  not  taking  the  trouble  to  understand 
the  question.  The  experience  of  constitutional  amendments  has 
shown  that  the  votes  upon  them  are  ridiculously  small.  In  New 
York,  for  instance,  in  1905,  a  constitutional  amendment  altering 
the  entire  economic  law  as  to  the  rate  of  wages  to  be  paid  in  public 
work  ^  passed  the  popular  electorate  by  a  vote  hardly  one-tenth  of 
the  total  vote  thrown  for  governor,  —  a  far  less  important  matter. 

>  See  Book  III,  §  453. 


60  THE    AMERICAN   CONSTITUTIONS  [BOOK   I 


CHAPTER   X 

FEDERAL   AND   STATE    POWERS 

The  division  of  all  governmental  powers,  judicial  as  well  as  legis- 
lative and  executive,  into  two  sovereignties,  whereby  a  strong  national 
government  is  made  compatible  with  local  courts,  laws  suited  to  the 
conditions  and  institutions  of  each  several  State,  and  home  admin- 
istration of  domestic  affairs,  —  is  the  most  striking  of  American  in- 
ventions and  has  been  discussed  elsewhere.'  This  it  is  which  chiefly 
distinguishes  the  American  public  from  France  or  most  other  modern 
governments;  though  indeed  some  resemblance  to  it  may  be  found 
in  the  system  of  the  German  Empire.  Our  frontispiece  shows 
graphically  this  division  of  powers :  the  whole  circle  representing  the 
sphere  of  all  possible  legislation,  and  every  possible  division  and 
qualification  of  power  being  represented  in  the  several  zones;  the 
blue  zones  "A"  and  "B"  representing  powers  granted,  express  or 
implied,  to  the  Federal  Government  and  to  the  States  respectively; 
the  red  zones  "X"  and  "Z"  representing  powers  denied  or  withheld, 
expressly  or  by  necessary  implication,  from  the  Federal  Government 
and  from  the  States  respectively;  the  perpendicular  lines  always 
referring;  to  the  States  and  the  horizontal  lines  alwavs  to  the  Federal 
Government;  while  that  domain  of  sovereign  power  left  uncovered  in 
the  centre  by  either  the  two  blue  zones  of  permission  or  the  two 
red  zones  of  denial  represents  those  cardinal  rights  and  that  part  of 
ultimate  sovereignty  which  the  people  who  adopted  the  Constitution 
chose  to  keep  in  their  own  hands  not  only  by  necessary  implication, 
but  by  the  express  iteration  of  the  Tenth  Amendment.  These 
divisions  of  power  and  negations  of  power  we  have  endeavored  to 
analyze  in  detail  in  Chapter  III  of  Book  II;  but  it  remains  for  us 
here  to  study  the  broad  lines  and  the  leading  principles  of  this  great 
division  of  all  constitutional  powers  between  the  States  and  the 
Federal  Government. 

The  Federal  powers  are  political;  that  is  the  great  criterion.  The 
State  powers,  on  the  other  hand,  are  domestic,  social.    They  relate 

'  See  Chapter  I;  Stimson,  "The  American  Constitution,"  Chapters  V  and 
VI;  Book  111,  Art.  19. 


CIIAr.    X]  FEDERAL   AND    STATE   POWERS  61 

to  the  relation  between  a  man  and  his  fellow-men,  to  his  control  over 
his  own  property,  taxation  for  all  purposes  but  national  defence, 
and  to  the  trial  of  his  disputes  with  his  neighbors,  of  his  contro- 
versies with  all  except  the  Federal  Government,  and  of  all  his 
crimes  or  offences  except  only  those  which,  like  treason,  relate 
directly  to  his  duty  to  the  Federal  Government,  or  are  committed 
in  the  places  subject  to  its  exclusive  jurisdiction,  such  as  forts, 
military  reservations,  national  territory  not  incorporated  into  a 
State,  and  the  high  seas.  The  Federal  Government  is  a  political 
sovereign ;  but  has  almost  none  of  the  attributes  of  sovereignty  for 
any  other  purpose.  This  broad  fact  is  revealed  to  us  with  startling 
clearness  when  we  note  that  it  has  generally  neither  the  power  of 
capital  punishment  nor,  in  effect,  of  direct  taxation.  It  would  be 
hard  to  find  two  more  necessary  attributes  of  sovereignty,  as  com- 
monly understood  in  the  science  of  government,  than  the  power 
over  life  and  the  power  over  property.  Moreover,  except  for  speci- 
fied purposes  of  national  defence,  etc.,  it  cannot  hold  any  land; 
even  the  district  of  the  capitol  is  limited  to  ten  miles  square. 
Even  its  political  power  is  far  less  than  is  commonly  enjoyed  by  sov- 
ereign nations;  it  cannot,  for  instance,  cede  territory  from  any 
State.  Moreover,  our  national  sovereign  is  controlled  by  the  most 
fundamental  of  all  limitations.  It  may  not,  under  the  Constitution  — 
that  is  to  say,  without  going  back  to  the  people,  which  It  recognizes 
as  the  only  source  of  power  —  change  its  form  from  a  republican 
form  of  government,^  not  even  to  a  pure  form  of  democracy.'  It 
is  even  possible,  under  the  Fifth  and  Fourteenth  Amendments,  that 
it  may  not  adopt  a  system  of  socialism  or  communism,  or  permit  a 
State  so  to  do. 

To  see  how  completely  this  division  between  what  is  political  and 
what  is  social,  domestic,  or  relating  to  private  right  is  carried  out  in 
the  Federal  Constitution,  it  will  repay  us  to  run  over  its  provisions 
in  some  detail.  The  Preamble  relates  both  to  social  and  political 
objects,  such  as  the  common  defence,  but  lays  down  at  the  beginning 
the  great  principle  that  it  is  the  people  and  not  the  States  who  made 
the  nation  and  the  Constitution.  The  first  two  sections  of  Article  I 
relating  to  Congress  are  political.  Section  3  forbids  all  direct  taxes, 
that  is,  all  taxes  directly  imposed  upon  property  or  individuals, 
except  they  be  apportioned  to  the  States  according  to  their  popula- 

'  Cooley,   Const.   Law,   Chap.   XI;        ^  Art.  IV,  4. 
3d  ed.,  p.  213. 


62  THE   AMERICAN   CONSTITUTIONS  [boOK   I 

tion,  and  not  according  to  their  wealth.  This  not  only  is,  hut  was 
intended  to  be,  in  effect  a  prohibition  to  the  Federal  Government  of 
the  power  of  direct  taxation.  All  the  rest  of  the  first  seven  sections 
are  also  political;  relating  generally  to  the  organization,  election, 
and  liberties  of  the  Congress,  and  the  method  of  legislation.  Sec- 
tion 8  of  Article  I  contains  almost  the  only  powers  given  to  the  Fed- 
eral Government  which  may,  under  our  division,  be  called  social; 
and  while  no  one  would  desire  to  change  the  Constitution  in  this 
particular,  it  is  highly  significant  that  this  exception  has  given  rise 
to  most  of  the  litigation,  most  of  the  discussion,  and  to  the  leading 
division  between  the  two  great  political  parties  to-day.  That  is  to 
say,  while  the  object  of  the  Federal  Government  is  to  protect  the 
nation  from  attack  and  manage  its  foreign  affairs  and  impose  taxes 
therefor  "for  the  common  defence  and  general  welfare  of  the  United 
States,"  the  lesson  of  the  existence  of  the  thirteen  States  under  the 
Confederation  showed  that  they  could  not  be  trusted  with  the  regu- 
lation of  commerce  passing  from  or  to  other  States  and  crossing 
their  borders.  This,  therefore,  was  denied  to  the  States,  and  neces- 
sarily left  to  the  Federal  power ;  doubtless,  however,  rather  with  the 
intention  of  preventing  the  States  from  interfering  with  such  com- 
merce than  of  allowing  the  Federal  Government  to  do  so.  Then, 
Congress  is  authorized  to  make  a  uniform  bankruptcy  law  through- 
out the  United  States;  the  only  matter  in  which  the  necessary  ad- 
visability of  uniform  laws  was  recognized  in  the  Constitution  and 
expressly  given  to  the  Federal  Government;  and  the  power  to  estab- 
lish post  offices  and  post  roads  and  issue  national  patents  and  copy- 
rights, being  a  usual  national  power,  is  hardly  an  exception  to  our 
rule.  Yet  these  matters,  until  we  come  to  the  Fourteenth  Amend- 
ment, are  the  only  subjects  in  which  the  Constitution  clothes  the 
Federal  Government  with  any  power  relating  to  the  citizen's  in- 
dividual affairs  and  his  private  business. 

But  even  the  political  powers  are  not  broadly  given.  The  eight 
clauses  of  Section  9  in  the  first  article  consist  entirely  of  negations; 
and  there  are  many  others.*  On  the  other  hand,  the  entire  sov- 
ereignty of  the  State  over  individual  relations,  social  and  domestic 
affairs,  and  property  rights  is  shown  by  the  very  few  restrictions  and 
exceptions  we  can  find  in  the  Federal  Constitution.  And  these  ex- 
ceptions are  purely  political,^  except  in  so  far  as  they  guarantee  the 

'  See   Chapter  III,    Book    II    (X),        ^  i^id.,  (Z). 
(ZX). 


CHAP.    X]  FEDERAL    AND    STATE    POWERS  63 

rights  of  citizens  of  States  to  equal  law  in  other  States.  The  expe- 
rience of  the  Revolution  gave  rise  to  Article  I,  Section  10,  Clause  1, 
prohibiting  them  from  passing  a  law  impairing  the  obligation  of 
contracts ;  that  is  to  say,  a  stay  law,  or  a  law  preventing  any  creditor 
—  and  it  was  aimed  to  protect  creditors  outside  the  State  —  from 
enforcing  lawful  contracts  or  debts.  National  political  powers,  as 
well  as  powers  of  national  taxation,  or  taxes  upon  interstate  or 
foreign  trade,  are,  of  course,  forbidden  to  the  States.  Article  II  re- 
lates entirely  to  the  Federal  executive  power  and  is  entirely  political ; 
Article  IlPto  the  Federal  judicial  power,  and  here  we  find  that  the 
only  case  where  the  national  courts  may  be  invoked-  except  to  inter- 
pret and  define  the  Federal  Constitution  is  to  guarantee  a  fair  trial 
in  an  impartial  tribunal  between  citizens  of  different  States.  Article 
IV,  Section  2,  does,  indeed,  provide  that  a  citizen  of  one  State  shall 
have  all  the  social  and  contractual  rights  that  are  given  in  any  other 
State  to  the  citizens  thereof ;  but  this  can  hardly  be  said  to  give  the 
Federal  Government  any  power  over  social  matters ;  rather  it  merely 
guarantees  the  right  to  law  in  each  State  to  all  citizens  of  other 
States,  much  as  the  Fourteenth  Amendment  later  does  to  all  citizens 
of  the  United  States,  and  even  as  Henry  II  guaranteed  it  to  all 
freemen  of  England.  Over  the  territories,  indeed,^  Congress  ^  is 
expressly  given  full  power,  social  and  domestic  as  well  as  pohtical; 
but  it  is  only  of  late  years  that  it  has  generally  exercised  it  in  any 
other  way  than  to  erect  territorial  legislatures;  and  in  the  older 
territories,  at  least,  there  is  no  meddling  with  individual  rights. 

The  first  eleven  amendments  are  all  restrictions;  that  is  to  say, 
they  are  at  great  pains  expressly  to  withhold  all  social  and  domestic 
affairs,  or  cardinal  liberty  rights,  from  the  Federal  Government,  and 
even  some  that  are  political;  the  first  ten,  therefore,  showing  a 
strong  reaction  in  favor  of  the  rights  of  the  States  and  the  liberties 
of  the  people,  in  1791,  while  the  Eleventh  Amendment,  in  1798, 
was  a  still  more  decisive  step  in  that  direction,  withholding  all  Fed- 
eral judicial  power  where  a  State  was  directly  concerned;  much  as 
James  I  endeavored,  though  vainly,  to  get  Chief- Justice  Coke  to 
rule  that  he  would  not  consider  a  case  where  the  interests  of  the 
king  were  involved.  The  Thirteenth  Amendment  is  striking  in  that 
it  is  the  only  instance  where  the  Constitution  is  expressly  extended 
to  any  place  subject  to  the  jurisdiction  of  the  United  States,  and 

\  Art.  IV,  Sec.  3.  the  whole  government,  both  President 

^  Not,  as  in  England  it  would  be,    and  Congress,  but  Congress  alone. 


64  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

wlicrc,  as  it  has  recently  been  put,  "The  Constitution  follows  the 
flag."  Slavery,  therefore,  can  exist  nowhere,  not  even  in  the  Sulu 
Islands;  although  even  the  other  cardinal  requirement,  a  republican 
form  of  government,  may  constitutionally  be  withheld  from  them  as 
from  the  other  territorial  possessions. 

The  modern  reaction  in  favor  of  the  Federal  power  is  shown  first 
in  the  Fourteenth  Amendment,  proclaimed  July  28,  1868,  though  the 
interpretation  which  might  have  revolutionized  the  whole  State  and 
Federal  system  has  substantially  been  denied  by  the  Supreme  Court. 
The  amendment  does,  however,  and  for  the  first  time,  interfere  be- 
tween the  State  and  the  individual,  if  not  between  the  individual  and 
his  neighbors.  The  State  is  forbidden  to  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  or  to  deny  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws,  and  this 
directly  by  the  Federal  Government.  The  radical  upholders  of 
centralization,  in  reconstruction  times,  undoubtedly  believed  that 
this  brouffht  the  hand  of  the  Federal  Government  between  a  man 
and  his  neighbors  and  indeed  into  all  his  private  affairs ;  otherwise 
it  would  be  surprising  that  it  took  nearly  twenty  years  of  great 
decisions  by  the  Supreme  Court  to  read  the  amendment  in  strict 
accordance  with  its  simple  words  and  establish  that  it  applied  only 
to  a  State,  and  to  due  process  of  law  of  a  State;  that  it  did  not 
give,  as  had  been  given  to  the  King's  courts  after  the  Conquest, 
on  the  mere  plea  of  Englishry  or  that  a  Norman  was  concerned, 
jurisdiction  to  the  Federal  courts  of  all  matters  and  causes  where 
a  Negro  was  concerned.  As  it  has  therefore  worked  out,  it  is  merely 
a  new  national  guaranty,  like  that  securing  a  republican  form  of 
government,  of  the  cardinal  liberty  and  property  rights  against  law- 
making by  the  States;  and  it  does  not,  under  the  plea  that  a  person 
is  being  unfairly  treated  by  a  neighbor  or  an  official,  drag  all 
matters  of  ordinary  trade  and  private  right  into  the  Federal  courts. 

Whether  the  extreme  interpretation  of  the  interstate  commerce 
clause  now  proposed  will  carry  us  to  this  length,  it  is  too  early  now  to 
say;  nor,  indeed,  is  this  a  controversial  essay.  That  there  has  been 
for  some  years  a  decided  trend  in  that  direction,  one  must  admit. 
The  effect  of  the  interpretation  by  the  courts  and  by  Congress  of 
the  words  "regulate  commerce  among  the  several  States"  has  been 
gradually  to  extend  the  meaning  of  "  commerce, "  from  the  things 
transported,  the  physical  instrumentalities  of  interstate  commerce, 
the   necessary  documents  concerning  it,  to  the  corporations  and 


CHAP.    X]  FEDERAL   AND   STATE    TOWERS  65 

persons  conducting  it,  the  conditions  of  their  labor  and  the  rates 
they  may  charge,  —  this  by  the  year  1908, — and  the  meaning  of  the 
words  "among  the  several  States"  from  the  natural  physical  trans- 
portation across  State  lines,  to  a  combination  or  contract  made  in 
one  or  more  States  intended  to  act  in  others  or  in  effect  carried  out 
in  others.  It  is  perhaps  obvious  that  we  intend  to  withhold  the  right 
of  conducting  interstate  commerce  from  any  corporation  not  con- 
forming to  a  Federal  standard.  Whether  we  shall  go  further  and 
deny  it  to  individuals;  whether,  indeed,  Congress  has  the  consti- 
tutional right  to  deny  it  to  individuals;  and  whether,  on  the  other 
branch  of  the  definition,  we  shall  extend  it  from  commerce,  in  the 
sense  of  interstate  traffic,  to  manufacturing,  mining,  or  producing 
goods  intended  to  be  sold  outside  of  the  State  where  they  are  manu- 
factured, mined,  or  produced;  and  to  the  returns,  or  the  profits,  or 
the  fortunes,  or  the  disposition  of  the  fortunes  derived  therefrom ; 
and  still  more,  to  the  contractual  relations,  the  conditions  of  labor, 
etc.,  of  the  persons  so  engaged,  —  are  all  matters  for  the  future  to 
settle. 

Finally,  we  must  never  forget  that  there  is  a  division  of  power 
more  important  still,  and  also  made  for  the  first  time  in  the  American 
Constitution ;  that  is  to  say,  the  powers,  rights,  or  liberties  reserved 
in  the  people  of  the  United  States,  not  delegated  by  them  to  the 
Federal  power  or  always,  even,  to  the  State  Governments  formed 
or  to  be  formed.  This  principle  we  have  discussed  in  Chapter  I. 
It  is  expressed  in  the  frontispiece  in  the  central  domain  "Y, "  left 
white,  "virgin  still  with  the  people."  ^  It  must  be  particularly  noted 
that  this  is  the  only  infinite  domain  of  power  recognized  in  the 
Federal  Constitution.  All  the  others  are  definite,  delimitated ;  given, 
or  denied.  There  has,  indeed,  of  late  been  a  notion  that  there  is 
something  like  an  inherent  national  power,  indefinite  in  extent;  but 
this  idea  can  find  no  place  in  any  logical  study  of  the  Constitution ; 
if  there  be  such  powers,  they  simply  fall  under  the  head  of  implied 
powers  of  the  Federal  Government.  And  from  the  point  of  view  of 
our  study,  there  is  no  difference  between  an  expressed  power  and 
one  implied.  After  the  Supreme  Court  of  the  United  States  has 
found  an  implied  power  to  exist,  by  necessary  implication  or  other- 
wise, it  becomes  for  our  purposes  just  as  much  a  part  of  the  Federal 
Constitution  as  if  it  were  definitely  expressed.  The  wording  of  the 
articles  of  Confederation  (Article  II)  that  "each  State  retains  every 

'  See  "  The  American  Constitution,"  p.  197. 
5 


66  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

power  .  .  .  which  is  not  by  this  confederation  expressly  delegated  to 
the  United  States  .  .  ."  fell  to  the  ground  with  the  adoption  of  the 
Federal  Constitution  eight  years  later,  and  received  its  coup  de 
grace  in  the  Civil  War;  but  because  this  is  so,  we  must  not  fly  to 
the  other  extreme  and  hold  powers  to  reside  in  the  Federal  Gov- 
ernment, whether  they  were  ever  given  to  it  or  intended  to  be  given 
by  the  people,  expressly  or  impliedly,  or  not.  The  "  inherent  national 
power,"  therefore,  finds  its  natural  and  legitimate  place  in  our  zone 
of  "A";    but  is  not  to  be  robbed  from  the  central  liberties  of  "Y." 

The  great  right  reserved  to  the  people,  of  course,  is  that  of  a  re- 
publican form  of  government.  The  next  is  that  of  personal  liberty. 
A  republican  form  of  government  is  forever  guaranteed  to  the 
States,  —  not,  apparently,  to  the  territories ;  still  less  to  the  insular 
possessions;  for  the  somewhat  contradictory  opinions  of  our  judges 
on  the  insular  cases  seem  at  least  to  involve  this  result :  that  there 
is  a  tertium  quid,  something  other  than  a  State  or  a  territory  as 
hitherto  understood.  Just  what  a  republican  form  of  government 
means,  it  may  be  for  the  future  to  settle.  On  the  one  hand,  it  may 
not  be  a  military  dictatorship  or  military  power  generally,  save,  per- 
haps, in  the  insular  possessions;  or  in  time  of  actual  war,  or  as  a 
consequence  thereof;  on  the  other  hand,  according  to  the  text- 
writers,  it  must  involve  representative  government,  and  by  the  letter 
of  our  Constitution,  the  institution  of  private  property.  The  right 
of  personal  liberty  was  originally  and  expressly  guaranteed  to  citi- 
zens of  the  States  alone,  but  practically,  by  the  Fourteenth  Amend- 
ment and  many  decisions,  to  United  States  citizens  in  the  territo- 
ries; while  the  general  institution  of  slavery,  indeed,  is  the  one 
thing  forbidden  by  the  Constitution  even  in  our  insular  possessions. 
The  rest  of  the  Federal  Constitution,  however,  does  not,  by  the 
prevailing  opinion,  extend  to  the  insular  possessions,  except,  at 
least,  in  such  doses  as  Congress  may  choose  to  administer  it.  As  to 
the  frame  of  government,  the  Constitution  makes  the  most  sacred 
thing  in  it  the  last  sentence  in  the  fifth  article,  providing  that  the 
Constitution  itself  may  never  be  so  amended  as  to  deprive  any 
State  of  its  equal  suffrage  in  the  Senate;  this,  indeed,  being  the 
strongest  recognition  of  States'  rights  in  that  document,  outside 
of  the  Tenth  Amendment,  and,  indeed,  put  more  strongly  than  in 
the  Tenth  Amendment,  as  it  is  the  one  instance  in  which  the  Con- 
stitution itself  recognizes  the  right  of  secession. 

The  other  cardinal  rights  reserved  to  the  people  are  in  general 


CHAP.    X]  FEDERAL   AND   STATE    POWERS  67 

all  those  liberty  rights  discussed  in  our  seven  first  chapters;  in 
other  words,  substantially  the  English  Constitution.  These  are, 
for  the  most  part,  set  forth  in  the  first  eight  amendments.  The 
people  are  declared  in  the  Preamble  to  be  the  sovereign,  though 
the  expression  of  that  sovereignty  is,  in  the  Fifth  Article,  shifted 
to  legislatures  or  popular  conventions  in  three  fourths  of  the  States. 
The  political  rights  are,  broadly  speaking,  popular  representation, 
equal  suffrage  for  the  lower  house,  control  of  their  own  elections 
and  courts,  impeachment  of  Federal  officers,  the  power  of  the  purse 
in  the  lower  house  of  Congress,  uniform  taxation  for  the  general 
welfare,  limitation  of  military  appropriation  to  two  years,  practical 
freedom  from  direct  taxation  by  the  Federal  Government,  and  pro- 
hibition of  special  privilege;  most  important  of  all,  that  the  judges 
shall  hold  their  office  for  life,  not  subject  to  removal  by  the  Execu- 
tive, and  for  a  fixed  compensation;  and  the  careful  separation  of 
the  powers  already  referred  to. 

Many  of  these  rights  are  doubly  safeguarded  by  being  forbidden 
both  to  the  nation  and  to  the  States.'  Freedom  of  trade  amoncr 
the  States,  supremacy  of  the  Federal  Constitution,  a  republican 
form  of  government,  liberty  and  racial  equality  are  so  guaranteed. 
It  will  be  noted  ^  that  Massachusetts  (1780)  preceded  and  New 
Hampshire  (1792)  followed  the  Federal  Constitution  in  reserving 
to  the  people  every  power,  jurisdiction,  and  right  which  was  not 
by  them  expressly  ^  delegated  to  the  United  States  of  America  in 
Congress  assembled.  A  more  striking  statement  still  is  found  in 
West  Virginia  (Article  I,  2):  "The  government  of  the  United 
States  is  a  government  of  enumerated  powers,  and  all  powers  not 
delegated  to  it,  nor  inhibited  to  the  States,  are  reserved  to  the 
States  or  to  the  people  thereof.  Among  the  powers  so  reserved 
by  the  States,  is  the  exclusive  regulation  of  their  own  internal 
government  and  police ;  and  it  is  the  high  and  solemn  duty  of  the 
several  departments  of  government,  created  by  this  Constitution, 
to  guard  and  protect  the  people  of  this  State  from  all  encroach- 
ments upon  the  rights  so  reserved." 

'  Book  II,  Chap.  Ill,  "ZX."  Hampshire,  but  omitted,  in  accordance 

^  See  Book  III,  §  193,  notes.  with  modem  doctrine,  from  the  later 

'  Sic,   in   Massachusetts   and   New   Constitution  of  West  Virginia. 


68  THE   AMERICAN   CONSTITUTIONS  [BOOK   1 


CHAPTER   XI 

THE   STATE   CONSTITUTIONS 

IMany  of  the  State  Constitutions,  notably  of  Virginia  and 
Massachusetts,  were  adopted  before  the  Federal  Constitution  itself,' 
and  served  to  a  certain  extent  as  a  model  for  it,  and  it  is  always 
important  to  remember  that  the  two  parties  bringing  their  influence 
to  bear  upon  the  adoption  of  the  State  Constitutions  changed  posi- 
tions entirely  from  those  occupied  by  them  in  considering  these,  when 
they  came  to  consider  the  Federal  Constitution.  The  latter,  in 
its  most  centralized  form,  giving  largest  power  to  the  Federal 
Government,  was  backed  by  the  Federalists ;  generally  the  educated 
and  propertied  classes,  who  were  desirous  of  a  strong  central 
government,  not  only  from  motives  of  personal  ambition,  but 
because  they  desired  protection  from  the  absolute  democracy  of  the 
State  Legislatures.  They  wanted  the  nation  to  be  strong  abroad, 
their  own  property  and  contracts  to  be  protected  and  respected  at 
home,  and  their  trade  and  business  not  to  be  taxed  or  interfered 
with  by  State  regulations.  Too  great  extension  of  the  Federal 
power  was,  however,  opposed  by  those  whom  we  should  now  call 
Democrats,  Thomas  Jefferson,  Patrick  Henry,  and  others,  jealous 
of  too  much  government  of  any  sort,  who  desired  above  all  things 

'  Virginia,    June  29 ;    New   Jersey,  vania  and  Maiyland,  was  the  first  Am- 

July  13;  Delaware,  Sept.  21 ;  Pennsyl-  erican  Constitution  actually  adopted, 

vania,  Sept.  28;    Maryland,   Nov.    11;  that  of  South  Carolina  (March  26,  1776) 

North  Carolina,  Dec.  18,  1776;  Georgia,  being  a  political  frame  of  temporary 

Feb.   5;  New    York,    April    20,    1777;  government  for  the  "  Colony  "  and  soon 

Massachusetts,    March     2,     1780.      In  followed  by  the  Constitution  of  1778.  It 

Connecticut  the  charter  of  Charles  II  uses  the  word  "Commonwealth;"  the 

(1662)    was  ratified,  and  a  simple  Bill  Declaration  of  Independence,  and  the 

of  Rights  added,  in  1776.     New  Hamp-  Constitution  of  Delaware  are  first  to 

shire,   after   one    or  two    abortive   at-  say    "  State."      Pennsylvania,    Massa- 

tempts,  adopted  its  Constitution  June  chusetts,  and  Kentucky  are  also  still 

2,  1784.     Charles  II,  in  1663,  granted  Commonwealths;    Connecticut    (1776) 

to  Benedict  Arnold  and  other  "  trustie  calls  itself  a  Republic,  Massachusetts 

and  well-beloved  subjects  "  a  charter  a   "  free,  Sovereign,  and  Independent 

for  Rhode  Island  and  Providence  plan-  State;"    while  Maine  is  officially  the 

tations  which   lasted   until    1842,   but  State  of  Maine,  and  Rhode  Island  also 

this  granted  autonomy,  with  the  fiber-  "  of    Providence   Plantations."     Thus 

ties  of   the  common  law.     Virginia's,  doth  one  star  differ  from  another  in 

followed  closely  by  those  of  Pennsyl-  glory  1 


CHAP.    Xl]  THE    STATE   CONSTITUTIONS  69 

to  maintain  the  political  liberty  of  the  individual,  and  his  freedom 
in  his  home  alfairs;  while  as  to  the  State  Governments,  having 
enjoyed  for  the  first  time  in  modern  English  history  complete  legis- 
lative power  unhindered  even  by  a  Constitution  or  a  Protector, 
popular  leaders  were  desirous  of  preserving  their  sovereignty,  and 
therefore  wished  to  give  indefinite  powers  to  the  State  Governments 
and  particularly  to  the  State  Legislatures,  and  withhold  as  much  as 
they  could  from  the  Federal  Government.  For,  the  powers  of  a  State 
government  being  original,  not  delegated,  its  legislature  represents 
a  power  that  at  its  origin  was  sovereign.  Here,  therefore,  the 
Federalists  became  the  upholders  of  individual  rights  and  prop- 
erty, and  imposed  the  checks  in  the  State  Bills  of  Rights  that  we 
find  so  notable  in  Virginia  and  in  Massachusetts.  It  is  as  true  as 
are  most  antitheses  that  the  people  imposed  the  Bill  of  Rights  upon 
the  Federal  Government,  in  the  form  of  the  first  ten  amendments; 
and  that  the  so-called  privileged  classes  imposed  similar  checks 
upon  the  State  legislatures.  Upon  one  thing  only  were  they  agreed, 
—  personal  freedom. 

These  Bills  of  Rights  have  been  necessarily  discussed  already; 
for  they  concern,  generally,  the  cardinal  principles  of  that  part  of 
the  Anglo-x\merican  Constitution  which  is  not  merely  political. 
Every  State  without  exception  has  one,  though  Michigan  in  her 
last  Constitution  chops  up  its  Bill  of  Rights  and  distributes  its 
provisions  around  "under  their  proper  headings."'  The  political 
framework,  also,  has  been  sufficiently  discussed  in  Chapters  VIII 
and  IX  above.  It  remains  for  us  to  discuss  here  that  extraordi- 
nary development  of  the  modern  State  Constitution  which  tends 
to  reduce  all  law-making  to  constitutional  provisions;  to  require  a 
periodical  referendum;  and  to  a  great  extent  do  away  with 
representative  government.^  New  Constitutions,  such  as  those 
of  Alabama,  Louisiana,  and  the  seven  Western  States,  evidently 
seek  to  embody  all  the  broad  notions  of  what  a  present  majority 
thinks  the  law  ought  to  be  into  the  organic  law  of  the  State. 
Necessarily  this  leads  to  the  embodying  of  the  prejudice  or  caprice 
of  the  moment  into  the  Constitution  itself;   for  it  is  human  nature 

*  I    cannot    agree    with    Professor  tinuity;    moreover  the  Bill  of  Rights 

Dealey  that  this  is  "  a  good  precedent."  should  have  a  greater  sanctity  than  the 

(Am.  Acad.  P.   &  S.  S.  Supp.  March  organization  parts  of  a  modern  State 

1907,  p.  21).      Is  the  great  clause  39  Constitution. 

of  Magna  Carta  judicial  alone?     Such         «  ggg  goo^  III,   §§   182,  200,  209, 

an  arrangement  destroys  historical  con-  &c. 


70  THE   AMERICAN   CONSTITUTIONS  [DOOK   I 

to  care  more  for  one's  peculiar  fancies  than  for  commonplace  facts. 
Thus,  the  Constitutions  of  several  States  make  licjuor  selling,  or 
the  bribery  of  officials,  necessarily  crink's  by  the  organic  law;  which 
murder  is  not.  It  is  part  of  the  Constitution  of  Oklahoma  that 
corporations  shall  be  tlenied  the  rights  of  ordinary  citizens  in  the 
courts;  of  California  that  stockholders  shall  not  be  protected  from 
unlimited  liability;  and  of  several  States  that  fiduciaries  may  not  in- 
vest in  corporate  securities.'  All  these  fall  into  that  part  of  our 
Book  III  that  we  call  "Legislation,"  and,  it  will  be  observed, 
they  cover  one  hundred  and  thirty-six  out  of  two  hundred  and 
forty-nine  pages  of  that  portion  of  our  work. 

It  is  significant  to  compare  these  modern  Constitutions  with  the 
older  Constitutions,  such  as  that  of  Massachusetts.  This  is,  indeed, 
owing  to  its  elaborate  political  framework,  much  longer  than  most 
Constitutions  of  the  original  thirteen  States;  but  it  contains  only  a 
Bill  of  Rights,  and  a  Part  II,  setting  forth  the  frame  of  government, 
—  and  nothing  whatever  else ;  no  directions  or  instructions  or  limi- 
tations, upon  the  Legislature,  save  that  they  should  enact  ^  "all 
manner  of  wholesome  and  reasonable  laws  as  they  may  judge  for 
the  benefit  and  welfare  of  this  State."  The  only  other  restriction 
which  can  possibly  be  considered  a  regulation  or  direction  in  the 
modern  sense  is  a  special  separate  chapter  providing  for  welfare  of 
the  university  at  Cambridge,  —  Harvard  College.  The  Constitu- 
tion of  Alabama,  on  the  other  hand,  contains  nearly  one  hundred 
sections  relating  to  the  legislation  permitted  or  denied  to  the  Legis- 
lature ;  ^  and  thirty-six  long  sections  concern  corporations,  the 
whole  Constitution  covering  sixty-nine  pages  of  fine  print.  The 
Oklahoma  Constitution  runs  to  one  hundred  and  seventy-five 
pages,  —  and  that  without  an  index.  Such  Constitutions,  of  course, 
show  distrust  by  the  people  of  their  own  Legislatures ;  but  such  dis- 
trust will  breed  unworthiness.^  Of  such  nature  also  are  the  curious 
restrictions  upon  the  passage  of  bills,  and  the  elaborate  constitu- 
tional provisions  against  corruption  or  abuse  of  official  power.^ 
The  more  reasonable  partial  referendums,  to  the  people  or  even  to 
the  taxpayers,  of  all  bills  involving  the  raising  or  expenditure  of 
public  money  or  the  increase  of  State  or  municipal  debt,®  have  al- 

>  See  Book  III,  §§  424,  508,  509.  ■•  See  above,  Chapter  VIII. 

=>  See  Book  III,  §  391.  ^  See  Book  III,  Articles  XXII  and 

3  §§  65  to  111;    204  to  219;    con-  XXVII. 
earning     taxation     and     exemptions;         '^  See  Book  III,  Articles  XXXI  to 

and  220  to  255.  XXXVII,  &c. 


CHAP.   Xl]  THE   STATE   CONSTITUTIONS  71 

ready  been  discussed.  The  extraordinary  number  of  things  which 
the  Legislatures  are  now  forbidden  to  do  by  local  or  special  law  (fol- 
lowing the  precedent  set  by  the  Constitution  of  New  York  of  1848) 
is  another  indication  of  the  same  distrust.* 

The  main  lines  on  which  this  third  or  unscientific  part  of  the 
modern  State  Constitution  has  sought  to  hamper  posterity  may  be 
briefly  summarized.  Land  laws,  the  prohibition  of  feudal  tenures, 
long  leases,  and  absentee  land-holding  -  go  back  to  the  first  Constitu- 
tion of  the  State  of  New  York;  but  the  complete  alteration  of  the 
common  law  as  to  the  use  of  water,  both  for  irrigation  purposes  and 
for  municipal  supply,  is  the  creature  of  recent  Western  State  Con- 
situtions  and  Spanish  or  customary  local  law.^  The  same  may  be 
said  of  the  "apexing"  law  of  mines,  though  this  has  not  yet  crept 
into  any  Constitution.  The  prejudice  against  dealing  in  futures, 
stock  jobbing,  etc.,^  is  closely  connected  with  the  provisions  against 
trusts,  of  which  later.  Many  States  forbid  the  Legislature  to  grant 
any  divorces.^  Otherwise  the  law  of  marriage  is  not  interfered  w^th. 
Laws  prohibiting  the  manufacture  or  sale  of  intoxicating  liquor  or 
extending  the  right  so  to  prohibit  it  to  the  counties  or  tow^ns  them- 
selves is,  of  course,  the  most  striking  novelty  usually  indulged  in  by 
Constitution-makers;®  but  is  now  likely  to  be  surpassed  in  fre- 
quency of  adoption  by  the  provisions  protecting  union  labor,  guard- 
ing the  labor  of  women  and  children,  and  providing  the  length  of  the 
day's  work,  even  of  men,  for  any  work  done  for  the  State  or  a  public 
contractor;  and,  in  such  work,  the  payment  of  fixed  wages.'  But 
the  greatest  innovation  by  the  Constitution  on  the  legislative  domain 
will  be  found  in  the  law  of  corporations  and  of  combinations.  The 
laws  against  "trusts"  —  which,  however,  in  almost  no  instance 
where  the  law  has  been  held  constitutional,  do  more  than  restate 
the  principles  of  the  older  common  law,^  are  put  into  constitutions. 
Not  only  are  general  incorporations  constitutionally  regulated,  but 
a  special  chapter  must  be  given  to  railroads  and  banks.^  The 
charges  of  all  public  service  corporations  may  be  regulated,  and 
all  discrimination  or  preference  forbidden,*"  and  they  may  not  en- 
gage in  other  lines  of  business,"  nor  can  foreign  corporations  engage 

'  See  Book  III,  §  395.  ^  See    Book    III,    Articles    L    and 

"  See  Book  III,  Article  XL.  LVIII. 

»  See  Book  III,  Article  XLI.  »  See  Book  III,  Articles  LIII  and 

*  See  Book  III,  Article  XLII.  LV 

''  See  Book  III,  §§  395,  430.  ">  Book  III,  §§  506,  521-524. 

•  See  Book  III,  Article  XLIV.  ''  Ibid.,  §  531. 
^  Chapter  V;  See  Book  III,  Article 

XLV. 


72  THE   AMERICAN   CONSTITUTIONS  [BOOK   I 

in  business  not  permitted  to  State  corporations  '  nor  one  corpora- 
tion own  stock  in  another.^  Most  interesting  will  be  found  the 
article  against  trusts,  monopolies,  combinations  to  fix  prices,  limit 
output,  control  the  market  or  the  actions  and  business  of  others.^ 
All  these,  being  common-law  principles,  have  stood  the  tests  of  the 
courts;  when  legislators  have  gone  beyond  them,  and  particularly 
when  even  State  Constitutions  have  attempted  to  exempt  certain 
classes,  such  as  organized  or  agricultural  labor,  or  certain  busi- 
nesses, such  as  dealing  in  farm  produce,  from  the  limitations  of 
the  general  law,  they  have  been  held  unconstitutional ;  that  is  to 
say,  State  Constitutions  have  been  held  void  under  the  Federal 
Constitution,  and  State  laws  under  both ;  under  State  Constitutions 
frequently  even  by  the  courts  of  the  same  States  which  adopted 
them. 

A  few  States  have  embodied  in  their  Constitution  their  system  of 
municipal  government,*  but  this  need  not  detain  us  except  for  the 
striking  novelty  in  newer  Western  Constitutions  that  any  city  or 
even  town  may  form  its  own  charter,  thereby  making  its  own  law 
and  founding  its  own  frame  of  government,  —  a  recurrence,  as  in 
many  another  case,  to  the  earliest  of  English  precedents;  thereby 
interesting  and  probably  possible,  for  what  has  worked  well  is  likely 
to  work  again.  It  is  new  legislation,  made  without  regard  to  custom 
or  habit,  that  is  apt  to  be  futile.^ 

With  the  judicial  system  alone  have  State  Constitutions  rarely 
presumed  to  tamper.  They  have  contented  themselves  with  adopt- 
ing the  common  law,  or  such  part  of  it  as  is  suited  to  their  needs  and 
to  their  previous  customs;  none  of  them  has  so  far  rejected  it;  al- 
though a  good  many  "fuse"  common  law  with  equity;  while  there 
is  a  recent  tendency  to  deprive  courts  of  chancery  of  the  power  of 
specific  performance  or  of  enforcing  their  decrees  by  contempt 
process,  at  least  in  labor  disputes.^  And  they  have  usually  pre- 
scribed a  scheme  of  courts,  their  organization  and  jurisdiction; 
though  even  this  is  not  done  in  New  Hampshire.^ 

>  Book  III,  §  505.  "  See    above.     Chapter    IV,    Book 

=  Ibid.,  §  518.  Ill,  Arts.  LXV,  LXVII. 

^  See  Book  III,  §§  518,  527,  580.  '  See  Book  III,  Art.  LXV,  American 

*  See  Book  III,  Article  LX.  Statute  Law,  Vol.  I,  §  550,  "Table  of 

*  See  James  C.  Carter,  "Law:    its  Courts." 
Origin,  Growth  and  Function,"  passim. 


BOOK  II 


CONSTITUTIONAL  PRINCIPLES  AS  EXPRESSED  IN 
THE  ENGLISH  STATUTES  OF  THE  REALM  AND 
AMERICAN   CONSTITUTIONS 


CHAPTER    I 

CONSTITUTIONAL  PRINCIPLES  PROTECTING  PERSONAL 
LIBERTIES  AND  PRIVATE  RIGHTS  AS  EXPRESSED 
IN  CONSTITUTIONAL  DOCUMENTS  FROM  MAGNA 
CARTA  TO   THE   UNITED    STATES    CONSTITUTIONS 

I.     LIBERTY 
(a)   General  Right  to;    Jury  Trial 


Mn;?na 
Carta 
(li:i5). 
Cap.   39 


Cap.  43 


Masna 
Carta  of 
Henry   III 

Cap.  JJ5 

28   Edw.    Ill 
(1354), 
Cap.  3 

Slassacliu- 
setts   Body 
of   Liber- 
ties, 1041 
(1) 


(17) 


(91) 


"No  free  man  shall  be  taken  or  imprisoned  or  disseised,  or 
outlawed,  or  exiled,  or  anyways  destroyed ;  nor  will  we  go  upon 
him,  nor  will  we  send  upon  him,  unless  by  the  lawful  judgment  of 
his  peers,  or  by  the  law  of  the  land." 

"In  future  any  one  may  leave  the  Kingdom  and  return  at 
will.  .  .  ." 

Wording  identical  with  M.  C.  cap.  39,  save  that  the  very  im- 
portant words  "Of  his  freehold  or  his  liberties  or  his  free  customs  " 
are  added  after  the  word  "disseised." 

The  words  "Unless  by  due  process  of  law"  are  used  instead  of 
"the  legal  judgment  of  his  peers  or  the  law  of  the  land." 

"No  mans  life  shall  be  taken  away,  no  mans  honour  or  good 
name  shall  be  stayned,  no  mans  person  shall  be  arrested,  re- 
strayned,  banished,  dismembered,  nor  any  wayes  punished,  no 
man  shall  be  deprived  of  his  wife  or  children,  no  mans  goods  or 
estaite  shall  be  taken  away  from  him,  nor  any  way  indammaged 
under  colour  of  law  or  Countenance  of  Authoritie,  unlesse  it  be  by 
vertue  or  equitie  of  some  expresse  law  of  the  Country  warant- 
ing  the  same,  established  by  a  generall  Court  and  sufficiently 
published,  or  in  the  case  of  the  defect  of  a  law  in  any  parteculer 
case  by  the  word  of  god.  And  in  Capitall  cases,  or  in  cases  con- 
cerning dismembring  or  banishment,  according  to  that  word  to 
be  judged  by  the  Generall  Court." 

"  Every  man  of  or  within  this  Jurisdiction  shall  have  free 
libertie,  notwithstanding  any  civill  power  to  remove  both  him- 
selfe,  and  his  familie  at  their  pleasure  out  of  the  same,  provided 
there  be  no  legall  impediment  to  the  contrarie." 

"  There  shall  never  be  any  bond  slaverie,  villinage  or  Cap- 
tivitie  amongst  us  unles  it  be  lawfuU  Captives  taken  in  just 
warres  and  such  strangers  as  willingly  selle  themselves  or  are  sold 
to  us.  .  .  ." 


76 


CONSTITUTIONAL   PIIINCIPLES 


[book   II 


Virginia 
Kill  <>r 
ItiKlitM 
(.liiiM-,  I77««), 
(Sec.  1> 


(S) 


I>e<'larn- 
tioii   of  In- 
«loi»«'inl«'in'e 
(July,    177«> 


MaMN.  necl. 
of    Iti^litM 


Ibid.,  XII 


V.  S.  Consti- 
tution 
(1787),  III,  3 
(3) 

Ibid..  Amt. 
Y  (.1791) 


Ibid.,  Amt. 
VI 


Ibid.,  Amt. 
XIII  (18(J5> 


Ibid.,  Amt. 
XIV,  1 

(1868) 


"  That  all  men  arc  by  natvirc  eciually  free  and  independent,  and 
have  certain  inheront  rif^hls,  of  which  wiieii  tiiey  enter  into  a 
state  of  society,  they  cannot,  by  any  compact,  deprive  or  divest 
their  posterity;  namely,  the  enjoyment  of  life  and  liberty,  with 
the  means  of  uctiuirinj?  and  possessing  property,  and  pursuing 
and  obtaining  hap[)incss  and  safety." 

"...  That  no  man  be  deprived  of  his  liberty,  except  by  the 
law  of  the  land  or  the  judgment  of  his  peers." 

"We  hold  these  truths  to  be  self-evident,  that  all  men  are 
created  equal,  that  they  are  endowed  by  their  Creator  with  certain 
unalienable  Uights,  that  among  these  are  Life,  Liberty  and  the 
pursuit  of  IIapi)iness.   .   .   ." 

"For  depriving  us  in  many  cases  of  the  benefits  of  trial  by 
jury." 

"All  men  are  born  free  and  equal,  and  have  certain  natural, 
essential,  and  unalienable  rights;  among  which  may  be  reckoned 
the  right  of  enjoying  and  defending  their  lives  and  liberties;  that 
of  acquiring,  possessing,  and  protecting  property;  in  fine,  that  of 
seeking  and  obtaining  their  safety  and  happiness." 

"...  And  no  subject  shall  be  arrested,  imprisoned,  despoiled, 
or  deprived  of  his  property,  immunities,  or  privileges,  put  out  of 
the  protection  of  the  law,  exiled,  or  deprived  of  his  life,  liVjerty,  or 
estate,  but  by  the  judgment  of  his  peers,  or  the  law  of  the  land." 

"And  the  legislature  shall  not  make  any  law  that  shall  subject 
any  person  to  a  capital  or  infamous  punishment,  excepting  for  the 
government  of  the  army  and  navy,  without  trial  by  jury." 

"The  Trial  of  all  Crimes,  except  in  cases  of  Impeachment, 
shall  be  by  Jury.  .  .  ." 

"No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
Militia,  when  in  actual  service  in  time  of  War  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
Criminal  Case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use,  without  just  com- 
pensation." 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation ;  to 
be  confronted  with  the  witnesses  against  him;  to  have  compul- 
sory process  for  obtaining  witnesses  in  his  favor,  and  to  have 
the  Assistance  of  Counsel  for  his  defence." 

"Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  LTnited  States,  or  any  place 
subject  to  their  jurisdiction." 

"All  persons  born  or  naturalized  in  the  United  States  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.    No  State  shall  make 


CUAP.   l] 


CONSTITUTIONAL    PRINCIPLES 


77 


or  enforce  any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws." 

(For  State  Constitutions,  see  Book  III,  §§  10,  12,  13,  14,  130, 
184.) 

(b)   Habeas  Corpus  and  Indictment 


ItlitKna 
Carta. 
Cap.   30 


Petition  of 
Ri^flits,   V 
(1037> 


Mass.  Deel. 
of  Rights, 
XII 


IT.  S.  Consti- 
tntion,  1;  9 
(3> 


Mass.  Body 
of  I/il»ertles 
(KJ41) 
Clause  18 


Habeas 
Corpus  Act, 
167» 


■''irafinia 
rs'l  of 
•*iarhts, 
Sec.  8 

r.  S.  Consti- 
tution, 
A.mt.  V 


"The  right  of  inquest  of  life  or  limb  shall  be  given  gratis,  and 
not  denied."  Substantially  the  same  in  the  Magna  Charta  of 
Henry  III,  cap.  32. 

"...  divers  of  your  subjects  have  of  late  been  imprisoned 
without  any  cause  showed;  and  when,  for  their  deliverance,  they 
were  brought  before  your  justices,  by  your  Majesty's  writs  of 
habeas  corpus,  there  to  undergo  and  receive  as  the  court  should 
order,  and  their  keepers  commanded  to  certify  the  causes  of 
their  detainer,  no  cause  was  certified,  but  that  they  were  detained 
by  your  Majesty's  special  command  .  .  ." 

"  No  subject  shall  be  held  to  answer  for  any  crimes  or  offence, 
vmtil  the  same  is  fully  and  plainly,  substantially  and  formally, 
described  to  him.  .  .  ." 

"The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless  when  in  Cases  of  Rebellion  or  Invasion  the 
public  Safety  may  require  it." 

(For  State  Constitutions,  see  Book  III,  §§  125,  126.) 

"  No  mans  person  shall  be  restrained  or  imprisoned  by  any 
Authority  whatsoever,  before  the  law  hath  sentenced  him  thereto. 
If  he  can  put  in  sufficient  securitie,  bayle  or  mainprise,  for  his 
appearance,  and  good  behaviour  in  the  meane  time,  unlesse  it  be 
in  Crimes  Capital,  and  Contempts  in  open  Court,  and  in  such 
cases  where  some  expresse  act  of  Court  doth  allow  it." 

Provides,  in  substance,  "  that  on  complaint  and  request  in 
writing  by  or  on  behalf  of  any  person  committed  and  charged 
with  any  crime  .  .  .  any  of  the  twelve  judges,  in  vacation,  upon 
viewing  a  copy  of  the  warrant,  or  affidavit  that  a  copy  is  denied, 
.  .  .  shall  award  a  habeas  corpus  .  .  .  returnable  immediately. 
.  .  .  That  the  writ  shall  be  returned  and  the  prisoner  brought 
up,  within  a  limited  time  according  to  the  distance,  not  exceeding 
in  any  case  twenty  days.  .  .  .  That  no  person  once  delivered  by 
habeas  corpus,  shall  be  recommitted  for  the  same  offence,  on 
penalty  of  £500." 

"That  in  all  capital  or  criminal  prosecutions,  a  man  hath  a 
right  to  demand  the  cause  and  nature  of  his  accusation.  .  .  ." 

"No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
mihtia,  when  in  actual  service  in  time  of  war  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself.   .   .   ." 

(For  State  Constitutions,  see  Book  111,  §§  120,  127,  128.) 


78 


CONSTITUTIONAL   PRINCIPLES 


[liOOK    II 


MnK-na 
<'iii'(it, 
C'a|»  '20 


MiisN.  Tlo«ly 
«»f  l.ilM>i-(  if.s 
Claiisf    1<> 

<'«irinis  Act, 
Cliiuse  XI 


nil!  of 

ItiKhts. 

Clause 


10 


Bill  of 
RiKlits, 
See.  y 

Mass.  I>ecl. 
of  HiKhts, 
Clause  XXVI 


V.    S.    Con- 
stitution, 
Amt.    VIII 


(c)    ExTKNT  OF  Bail  and  Punishment 

"A  Freeman  sliall  only  be  amerced  .  .  .  after  the  manner  of 
the  offence  .  .  .  saving  to  him  liis  contenement  ...  a  mer- 
cliant  savinfj^  liis  merchandise,  and  a  villein  saving  his  wainage; 
tiie  amercement  in  all  cases  to  be  assessed  by  the  oath  of  honest 
men  of  the  neighbourhood." 

"  For  bodilie  punishments,  we  allow  amongst  lis  none  that 
arc  inhuman,  barbarouse,  or  cruel." 

That  no  "inhabitant  ...  of  I'ngland  .  .  .  shall  or  may  be 
sent  prisoner  into  Scotland,  Ireland,  Jersey,  Guernsey,  Tangier 
...  or  places  beyond  the  seas  .  .  .  within  or  without  the 
dominions  of  his  Majesty.  .  .  ." 

"That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted." 

Copies  the  English  Bill  (10). 

"No  magistrate  or  court  of  law  shall  demand  excessive  bail  or 
sureties,  impose  excessive  fines  or  inflict  cruel  or  unusual 
punishments." 

"Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted." 

(For  State  Constitutions,  see  Book  III,  §§  121,  122,  123,  140, 
141.) 


Mass.    Body 
of  Liiber- 
ties,   Clanse 
42 

Clanse   45 


(d)   Trial  and  Evidence 

"No  man  shall  be  twise  sentenced  by  Civill  Justice  for  one  and 
the  same  Crime,  Offence  or  Trespasse." 

"No  man  shall  be  forced  by  Torture  to  confesse  any  Crime 
against  himselfe  nor  any  other  unlesse  it  be  in  some  Capitall  case 
where  he  is  first  fuUie  convicted  by  cleare  and  suffitient  evi- 
dence to  be  guilty  "  (after  which  he  may  be  tortured  to  obtain 
evidence  against  his  confederates  yet  not  with  such  "as  be  bar- 
barous and  inhuman  "). 

Clanse  47  "No  man  shall  be  put  to  death  withovit  the  testimony  of  two 

or  three  witnesses  or  that  which  is  equivalent  thereunto." 

Forbids  a  second  committal  for  the  same  offence. 

"...  to  be  confronted  with  the  accusers  and  witnesses,  to 
call  for  evidence  in  his  favour,  and  to  a  speedy  trial  by  an  impartial 
jury  of  twelve  men  of  his  vicinage,  without  whose  unanimous 
consent  he  cannot  be  found  guilty;  nor  can  he  be  compelled  to 
give  evidence  against  himself.  ..." 

"No  subject  shall  ...  be  compelled  to  accuse,  or  furnish 
evidence  against  himself.  And  every  subject  shall  have  a  right  to 
produce  all  proofs  that  may  be  favorable  to  him;  to  meet  the 
witnesses  against  him  face  to  face,  and  to  be  fully  heard  in  his 
defence  by  himself,  or  his  counsel,  at  his  election.  .  .  ." 

"Nor  shall  any  person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb." 

(For  State  Constitutions,  see  Book  III,  §  132,  137,  140.) 


Habeas 
Coryus  Act, 
VI 

"Virginia 
Bill  of 
Rights, 
See.  8 


Mass.  Decl. 
of  Rights, 
XII 


r.  S.  Con- 
Ntitntion, 
Amt.  V 


CHAP,   ij 


Mass.  Deol. 
of  Kiglits, 
XXIV 


r.    S.    Con- 
stitiitiuii,   If 

1,  10,  (1) 


CONSTITUTIONAL  PRINCIPLES 
(e)   Bills  of  Attainder 


79 


"Laws  made  to  punish  for  actions  done  before  the  existence 
of  sucli  laws,  and  which  have  not  been  declared  crimes  by  pre- 
ceding laws,  are  vmjust,  oppressive,  and  inconsistent  with  the 
fundamental  principles  of  a  free  government." 

"No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed." 

"No  State  shall  .  .  .  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts.  .  .  ." 

(For  State  Constitutions,  see  Book  III,  §§  138,  141.) 


Bill  of 
Rights  (1) 


(3) 


VirKinia 
Bill  of 
Ril^lits, 
Sec.   7 

Mass.  Decl. 
of  Rights, 
XX 


(f)   Suspending  Laws 

"  That  the  pretended  power  of  suspending  of  laws,  or  the  execu- 
tion of  laws,  by  regal  authority,  without  consent  of  Parliament, 
is  illegal." 

is  to  the  same  effect  but  forbids  the  "dispensing  with  laws" 
and  leaves  out  the  clause  about  Parliament. 

"  That  all  power  of  suspending  laws,  or  the  execution  of  laws, 
by  any  authority,  without  consent  of  the  representatives  of  the 
people,  is  injurious  to  their  rights,  and  ought  not  to  be  exercised." 

"The  power  of  suspending  the  laws,  or  the  execution  of  the 
laws  ought  never  to  be  exercised  but  by  the  legislature,  or  by 
authority  derived  from  it,  to  be  exercised  in  such  particular  cases 
only  as  the  legislature  shall  expressly  provide  for." 

(For  State  Constitutions,  see  Book  III,  §§  126,  392.) 


XXV 


IJ.  S.  Con- 
stitution, 
III,  3,  (1) 


III,  3,  (3) 


(g)   Treason 

"No  subject  ouglit,  in  any  case,  or  in  any  time,  to  be  declared 
guilty  of  treason  or  felony  by  the  legislature." 

"Treason  against  the  United  States  shall  consist  only  in  levy- 
ing War  against  them,  or  in  adhering  to  their  Enemies,  giving 
them  Aid  and  Comfort.  No  Person  shall  be  convicted  of  Trea- 
son unless  on  the  Testimony  of  two  Witnesses  to  the  same  overt 
Act,  or  on  Confession  in  open  Court. 

"The  Congress  shall  have  Power  to  declare  the  Punishment  of 
Treason,  but  no  Attainder  of  Treason  shall  work  Corruption  of 
Blood  or  Forfeiture  except  during  the  Life  of  the  Person  at- 
tainted." 

(For  State  Constitutions,  see  Book  III,  §  150.) 


Magna 
Carta, 
Cap.  39 

Cap.  40 


II.   LAW 

(a)   Common  Law,  Judges 
(The  right  to  law,  in  criminal  matters,  has  necessarily  been 

shown  above  in  connection  with  Liberty.    This  heading  relates  to 

general  matters.) 

"...  unless  by  .   .   .  the  law  of  the  land."    (See  I,  above.), 
"To  none  will  we  sell,  to  none  will  we  deny  or  delay  right,  or 

justice." 


80 


CONSTITUTIONAL   PRINCIPLES 


[book   II 


Cap.  4S 


28  Kilw.  Ill, 
C'liiip.  Ill 


Mnss.   Horty 
of  liiber- 
ties. 
Clause   2 


Petition   of 
Rigrlit 


Bill  of 
Rights  (3) 


Aet  of  Set- 
tlement 
(1700) 


Virginia 
Bill  of 
Rigrlits, 
See.  6 
Sec.   11 


Declaration 
of  Inde- 
I»enclence, 
Clause  13 

Clanse  24 


New  York 
Constitu- 
tion, Clause 
41   (1777> 


Mass.  Deel. 
of  Rig;lits, 
XI 


XV 


"Justices,  constables,  slieritTs,  and  bailiffs  shall  only  be  ap- 
pointed of  'such  as  know  the  law  and  mean  duly  to  observe 
it.'" 

"No  man  .  .  .  shall  be  .  .  .  put  out  of  land  or  tenement 
.  .  .  nor  disinherited  .  .  ,  without  being  put  in  Answer  by  due 
Process  of  the  Law." 

"  Every  person  within  tliis  JuriscHc-tion,  whether  Iiihal)itant  or 
forreiner  shall  enjoy  the  same  justice  and  law,  that  is  generall 
for  the  plantation,  which  we  constitute  and  execute  one  towards 
another  without  partialitie  or  delay." 

Cites  Magna  Carta  and  28  Edw.  Ill  as  above  and  denounces 
the  acts  comphiined  of  as  "against  the  laws  and  free  customs  of 
the  realm  "  (clauses  II,  VI,  VII,  VIII,  IX),  "the  laws  and  fran- 
chise of  the  land  "  (X). 

Tliat  the  commission  for  erecting  the  late  Court  of  Commis- 
sioners for  Ecclesiastical  Causes,  and  all  other  commissions  and 
courts  of  like  nature,  are  illegal  and  pernicious. 

"That  .  .  .  judges'  commissions  be  made  quamdiu  se  bene 
gesserint,  and  their  salaries  ascertained  and  established ;  but  upon 
the  Address  of  both  Houses  of  Parliament,  it  may  be  lawful!  to 
remove  them." 

No  men  can  be  "bound  by  any  law  to  w'hich  they  have  not 
[by  their  representatives]  assented.  .   .   ."  See  Government,  below. 

"That  in  controversies  respecting  property,  and  in  suits  be- 
tween man  and  man,  the  ancient  trial  by  jury  of  twelve  men  is 
preferable  to  any  other  and  ought  to  be  held  sacred." 

"He  has  made  Judges  dependent  on  his  Will  alone,  for  the 
tenure  of  their  offices,  and  the  amount  and  payment  of  their 
salaries." 

"For  abolishing  the  free  System  of  English  Laws  in  a  neigh- 
bouring Province,  establishing  therein  an  Arbitrary  govern- 
ment, and  enlarging  its  Boundaries  so  as  to  render  it  at  once  an 
example  and  fit  instrument  for  introducing  the  same  absolute 
rule  into  these  Colonies." 

"...  the  legislature  of  this  State  shall  at  no  time  hereafter 
institute  any  new  court  or  courts,  but  such  as  shall  proceed 
according  to  the  course  of  the  common  law." 

"Every  subject  of  the  Commonwealth  ought  to  find  a  certain 
remedy,  by  having  recourse  to  the  laws,  for  all  injuries  or  wrongs 
which  he  may  receive  in  his  person,  property,  or  character.  He 
ought  to  obtain  right  and  justice  freely,  and  without  being  obliged 
to  purchase  it ;  —  completely,  and  without  any  denial ;  — • 
promptly,  and  without  delay;  —  conformably  to  the  laws." 

"In  all  controversies  concerning  property,  and  in  all  suits 
between  two  or  more  persons,  except  in  cases  in  which  it  has 
heretofore  been  otherways  used  and  practised,  the  parties  have 
a  right  to  a  trial  by  jury;  and  this  method  of  procedure  shall 
be  held  sacred,  —  unless,  in  causes  arising  on  the  high  seas,  and 
such  as  relate  to  mariners'  wages,  the  legislature  shall  hereafter 
find  it  necessary  to  alter  it." 


CHAP.    l] 


CONSTITUTIONAL   PKINCIPLES 


81 


MnMs.  Docl. 
of  Iti^Iits, 
X.VI.V 


IT.  S.  Consti- 
tution, 
Amt.   VII 


Amt.  V 


"It  is  essential  to  the  preservation  of  the  rights  of  every  indi- 
vidual, his  life,  liberty,  property,  and  character,  that  tliere  be  an 
impartial  interpretation  of  the  laws,  and  administration  of  jus- 
tice. It  is  the  right  of  every  citizen  to  be  tried  by  judges  as  free, 
impartial,  and  independent  as  the  lot  of  humanity  will  admit. 
It  is,  therefore,  not  only  the  best  policy,  but  for  the  security  of 
the  rights  of  the  people,  and  of  every  citizen,  that  the  judges  of 
the  supreme  judicial  court  should  hold  their  offices  as  long  as 
they  behave  themselves  well;  and  that  they  should  have  honor- 
able salaries  ascertained  and  established  by  standing  laws." 

(The  Virginia  Bill  of  Rights  implies  this  principle;  see  III  (d), 
below. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined 
in  any  Court  of  the  United  States,  than  according  to  the  rules  of 
the  common  law. 


"  No  person  shall  be 


without  due  process  of  law 


Amt.  XIV,  1  "...  Nor  shall  any  State  deprive  .  .  .  ,  without  due 
process  of  law,  nor  deny  to  any  person  .  .  .  the  equal  protec- 
tion of  the  laws." 

(For  State  Constitutions,  see  Book  III,  §§  70,  72,  73,  74,  76, 
130.) 


Masna 
Carta, 
Cap.   17 

Cap.  20 


Cap.  34 


(b)   Local  Courts 

"Common  pleas  shall  not  follow  the  King's  Court,  but  be  held 
in  some  certain  place." 

Fines  to   be  assessed  by  honest  men  of    the  neighbourhood 
(see  I,  (c),  above). 

The  writ  called  Prcecipe  shall  not  in  future  be  issued,  so  as  to 
cause  a  freeman  to  lose  his  court. 


Virffinia 
Bill   of 
Ri^'lits  (S) 

Deeiaration         "He  has  combined  with  others  to  subject  us  to  a  jurisdiction 

of  inde-  foreign  to  our  Constitution,  and  unacknowledged  by  our  laws; 

pendenee,  '^  o  j  i 

Clause   17 


jury  of  liis  vicinage 


giving  his  Assent  to  their  Acts  of  pretended  Legislation." 


Clause    23 


Maryland 
Constitu- 
tion, Clause 

IS  (1776) 

Mass.  Decl. 
of  Rights, 
XIII 


U.  S.  Consti- 
tution, 
III,  2,  (3) 


"For  transporting  us  beyond  Seas  to  be  tried  for  pretended 
offences." 

"  That  the  trial  of  facts  where  they  arise  is  one  of  the  greatest 
securities  of  the  lives,  hberties,  and  estates  of  the  people." 

"In  criminal  prosecutions,  the  verification  of  facts,  in  the 
vicinity  where  they  happen,  is  one  of  the  greatest  securities  of  the 
life,  liberty,  and  property  of  the  citizen." 

"The  trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall 
be  by  Jury ;  and  such  Trial  shall  be  held  in  the  State  where  the 
said  Crimes  shall  have  been  committed ;  but  when  not  committed 
within  any  State,  the  Trial  shall  be  at  such  Place  or  Places  as  the 
Congress  may  by  Law  have  directed." 

(See  for  State  Constitutions,  Book  III,  §  133.) 


82 


CONSTITUTIONAL  PRINCIPLES 


[book  it 


(c)   Martial  Law,  Right  to  Arms,  etc. 


Petition  of 
HiK-litM, 
Clause   V'l 


ClnnseH 
VII,  VIII 


Clause  X 


Bill  of 
Rigrlits, 
Clause    ' 


Clause   G 


".  .  .  of  late  p;rcat  coinpaiiies  of  soldiers  and  mariners  have 
been  dispersed  into  divers  counties  of  the  realm,  and  the  iniiab- 
itants  against  their  wills  have  been  conii)elled  to  receive  them 
into  their  houses  and  there  to  suffer  them  to  sojourn,  against  the 
laws  and  customs  of  this  realm,   ..." 

"...  certain  persons  have  been  appointed  commissioners, 
with  power  and  authority  to  proceed  .  .  .  according  to  .  .  . 
martial  law  .  .  .  and  by  such  summary  course  and  order  as  is 
agreeable  to  martial  law,  and  as  is  used  in  armies  in  time  of  war, 
to  proceed  to  the  trial  and  condemnation  of  such  offenders,  and 
them  to  cause  to  be  executed  and  put  to  death  according  to  the 
law  martial.  By  pretext  whereof  some  of  your  Majesty's  subjects 
have  been  by  some  of  the  said  commissioners  put  to  death,  when 
and  where,  if  by  the  laws  and  statutes  of  the  land  they  had 
deserved  death,  by  the  same  laws  and  statutes  also  they  might 
and  by  no  other  ought,  to  have  been  judged  and  executed." 

"...  and  that  the  foresaid  commissions,  for  proceeding  by 
martial  law,  may  be  revoked  and  annulled  .  .  .  that  your 
Majesty  would  be  pleased  to  remove  the  said  soldiers  and 
mariners,  and  that  your  people  may  not  be  so  burdened  in  time 
to  come." 

"That  the  subjects  which  are  Protestants  may  have  arms  for 
their  defence  suitable  to  their  conditions,  and  as  allowed  by 
law." 

"That  the  raising  or  keeping  a  standing  army,  within  the 
kingdom  in  time  of  peace,  unless  it  be  with  consent  of  Parhament, 
is  against  law." 


"Virginia 
Bill   of 
Rigrlits, 
See.  13 


Declaration 
of  Inde- 
pendence, 
Clause  15 

Clauses  IS, 
19 


Mass.  Decl. 
of  Rij^Iits, 
XXVII 


XXV^H 


"That  a  well  regulated  militia,  composed  of  the  body  of  the 
people,  trained  to  arms,  is  the  proper,  natural,  and  safe  defence 
of  a  free  State ;  that  standing  armies  in  time  of  peace  should  be 
avoided  as  dangerous  to  liberty;  and  that  in  all  cases  the  mili- 
tary should  be  under  strict  subordination  to,  and  governed  by, 
the  civil  power." 

"He  has  kept  among  us,  in  times  of  peace.  Standing  Armies 
without  the  Consent  of  our  legislatures." 

"For  quartering  large  bodies  of  armed  troops  among  us:  For 
protecting  them,  by  a  mock  Trial,  from  punishment  for  any  mur- 
ders which  they  should  commit  on  the  inhabitants  of  these 
States." 

"In  time  of  peace,  no  soldier  ought  to  be  quartered  in  any 
house  without  the  consent  of  the  owner ;  and  in  time  of  war  such 
quarters  ought  not  be  made  but  by  the  civil  magistrate,  in  a 
manner  ordained  by  the  legislature." 

"No  person  can  in  any  case  be  subject  to  law-martial,  or 
to  any  penalties  or  pains,  by  virtue  of  that  law,  except  those 
employed  in  the  army  or  na\'y,  and  except  the  militia  in  actual 
service,  but  by  authority  of  the  legislature." 


CHAP.   l] 


CONSTITUTIONAL   PRINCIPLES 


83 


XII 


XVII 


V.  S.  Consii- 
tntion,  I,  8, 
(12) 

I,  8,  (14) 


I,  8,  (15) 
I,  8,  (IG) 


Amt.  II 
(1701) 


Amt.  Ill 


"And  the  legislature  shall  not  make  any  law  that  shall  suljject 
any  person  to  a  capital  or  infamous  punishment  (excepting  for 
the  government  of  the  army  and  navy)  without  trial  by  jury." 

"The  people  have  a  right  to  keep  and  to  bear  arms  for  the 
common  defence.  And  as,  in  time  of  peace,  armies  are  dan- 
gerous to  liberty,  they  ought  not  to  be  maintained  without  the 
consent  of  the  legislature;  and  the  military  power  shall  always 
be  held  in  an  exact  subordination  to  the  civil  authority,  and  be 
governed  by  it." 

"To  raise  and  support  Armies,  but  no  Appropriation  of  Money 
to  that  Use  shall  be  for  a  longer  Term  than  two  Years." 

"To  make  Rules  for  the  Government  and  Regulation  of  the 
land  and  naval  Forces." 

"To  provide  for  calling  forth  the  Militia  to  execute  the  Laws 
of  the  Union,  suppress  Insurrections  and  repel  Invasions." 

"To  provide  for  organizing,  arming,  and  disciplining,  the 
^lilitia,  and  for  governing  such  Part  of  them  as  may  be  em- 
ployed in  the  Service  of  the  United  States,  reserving  to  the 
States  respectively,  the  Appointment  of  the  Officers  and  the 
Authority  of  training  the  Militia  according  to  the  discipline  pre- 
scribed by  Congress." 

"A  well  regulated  Militia,  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  Arms, 
shall  not  be  infringed." 

"No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law." 

(For  State  Constitutions,  see  Book  III,  §§  62,  63,  290,  291, 
293,  294,  295,  298). 


III.   PROPERTY   AND  TRADE 


Ma^na 
Carta, 
Cap.  39 

Mai^na 
Carta,  Caps. 

28,  30,  31 


(a)    Property 

The  word  "disseised"  (see  I,  (a),  above)  relates  to  property. 

No  constable  or  other  royal  baiUfif  shall  take  any  man's  corn 
or  other  chattels  without  immediate  payment  .  .  .  nor  shall 
the  King,  his  sheriffs  or  bailiffs  take  any  horses  or  carriages  of 
freemen  for  carriage,  or  any  man's  timber  .  .  .  unless  by  con- 
sent of  the  owner. 


Maprna 
Carta    of 
Henry  III, 
Cap.  23 

28  E<lTr.  Ill, 
Cbap.  Ill 


No  constable  nor  his  bailiff  shall  take  com  or  other  chattels  of 
any  man  .  .  .  but  he  shall  forthwith  pay  for  the  same. 

(See  II,  (a),  above.)    A  man  may  not  be  "put  out  of  Land  or 
Tenement "  but  by  due  process  of  Law. 


Mass.  Body  " No  mans  Cattel  or  goods  of  what  kinde  soever  shall  be  pressed 

of  Liber-  qj.  taken  for  any  publique  use  or  service,  unlesse  it  be  by  warrant 

Clause  8  grounded  upon  some  act  of  the  generall  Court,  nor  without  such 

reasonable  prices  and  hire  as  the  ordinarie  rates  of  the  Countrie 


84 


CONSTITUTIONAL   PRINCIPLES 


[book  n 


Virginia 
Hill  «>r 
KiKlit.i, 
See.   1 


MnsN.  I>eel. 
of  Rif?ht»«, 
I 

II.  S.  Con- 
Htitntiuu, 
Aiut.  V 


Amt.  XIV,  1 


do  afford.    And  if  his  Cattel  or  goods  shall  perish  or  suffer  dam- 
age in  such  service,  the  owner  shall  be  sufhtiently  recompenced." 

"...  all  men  .  .  .  have  certain  riglits  .  .  .  namely,  the 
enjoyment  of  life  and  liberty,  with  tlie  means  of  acc)uiriiig  and 
possessing  prupcrty,  and  pursuing  and  obtaining  happiness  and 
safety." 

"...  tliat  of  accjuiring,  possessing,  and  protecting  property; 
in  fine,  that  of  seeking  and  obtaining  their  safety  and  happiness." 

(No  person  shall)  .  .  .  "be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law;  nor  shall  jirivate  property  be  taken 
for  public  use  without  just  compensation." 

"  Nor  shall  any  State  deprive  any  person  of  .  .  .  property 
without  due  process  of  law." 

(For  State  Constitutions,  see  Book  III,  §§  13,  90-95,  130,  183.) 


Carta, 
Cap.   13 


Cap.  41 


Cap.  33 


Mag'na 
Carta    of 
Henry  III, 
Cap.  35 

Statate  of 

monopolies, 

1623 


Mass.  Body 
of  Liberties 
(O) 

Declaration, 
of  Incle- 
penrtence. 
Clause    20 
"Virsinia 
Bill    of 
Kij^Iits, 
Sec.  4 


Maryland 
Constitu- 
tion, XXXIX 
(1770) 

Mass.  Decl. 
of  Rigrlits, 
Clause  VI 


(b)   Trade  and  Monopoly 

"The  City  of  London  shall  have  all  its  ancient  liberties  and 
free  customs  as  well  by  the  lands  as  by  the  seas  and  so  of  all  other 
cities,  boroughs,  towns  and  ports."  In  Henry  III  this  is  ex- 
tended to  the  barons  of  the  five  ports. 

"  All  merchants  shall  have  liberty  safely  to  enter,  to  dwell  and 
travel  in  and  to  depart  from  England  for  the  purpose  of  com- 
merce without  being  subjected  to  any  evil  tolls  but  only  to  the 
ancient  and  allowed  customs  except  in  time  of  war.  ,  .  ."  Iden- 
tical in  Cap.  37  of  the  Charter  of  Henry  III. 

All  w^eirs  in  the  Thames  and  Medway  and  throughout  England 
shall  be  put  down,  except  on  the  sea-coast. 

"No  freeman  shall  be  .  .  .  disseised  of  his  freehold  or  liber- 
ties or  free  customs."  The  last  words  relate  to  trade,  and  are 
expounded  by  Coke  as  including  a  prohibition  of  monopoly. 

All  monopolies,  all  licenses  to  do,  use  or  exercise  anything 
against  the  tenor  or  purport  of  any  law  or  statute,  declared 
void.     21  James  I,  Cap.  3. 

"No  monopolies  shall  be  granted  or  allowed  amongst  us,  but 
of  such  new  Inventions  that  are  profitable  to  the  Countrie  and 
that  for  a  short  time." 

"For  cutting  off  our  Trade  with  all  parts  of  the  world." 

"That  no  man,  or  set  of  men,  are  entitled  to  exclusive  or  sepa- 
rate emoluments  or  privileges  from  the  community  but  in  con- 
sideration of  publick  services;  which  not  being  descendible, 
neither  ought  the  offices  of  magistrate,  legislator,  or  judge  to  be 
hereditary." 

That  monopolies  are  odious,  contrary  to  the  spirit  of  a  free 
government  and  the  principles  of  commerce;  and  ought  not  to 
be  suffered. 

"No  man,  nor  corporation,  or  association  of  men,  have  any 
other  title  to  obtain  advantages,  or  particular  and  exclusive 
privileges,  distinct  from  those  of  the  community,  than  what 
arises  from  the  consideration  of  services  rendered  to  the  public; 
and  this  title  being  in  nature  neither  hereditary,  nor  transmissi- 


CHAP.   l] 


CONSTITUTIONAL    rRINCIPLES 


85 


IT.  S.  Consti- 
tution, Antt. 
XIV,  Sec.   1 


Mn^na 
Carta, 
Cap.  13 

Cap.  14 


Petition  of 
Rights,  I 


Bill  of 
Rigrlits  (4) 


Virginia 
Bill  of 
Rights, 
See.   6 

Declaration 
of  Inile- 
pen«lence, 
Clause    21 
Mass.  Decl. 
uf  Rights,  X 


Mass.  Decl. 
of  Rights, 
XXIII 


ble  to  children,  or  descendants,  or  relations  by  blood,  the  idea  of 
a  man  born  a  magistrate,  lawgiver  or  judge,  is  absurd  and 
unnatural." 

"...  nor  shall  any  State  .  .  .  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

(For  State  Constitutions,  see  Book  III,  §§  14,  16,  70,  394,  404, 
580,  etc.) 

(c)   Taxation 

"No  scutage  nor  aid  shall  be  imposed  in  our  kingdom  unless 
by  the  common  Council  of  the  realm"  (t.  e.  the  Parliament). 

Describes  how  the  National  Council  is  to  be  summoned  by  a 
writ  to  all  the  nobility  and  tenants  in  chief. 

These  two  clauses  were  omitted  in  Magna  Carta  of  Henry  III 
but  restored  in  the  Confirmation  of  Charters  of  Edward  I  in  the 
words  "From  henceforth  we  shall  not  take  such  manner  of  aids, 
tasks  nor  prises  but  by  the  common  assent  of  all  the  realm  and 
for  the  common  profit  thereof." 

"...  your  subjects  have  inherited  this  freedom,  that  they 
should  not  be  compelled  to  contribute  to  any  tax,  tallage,  aid  or 
other  Hke  charge  not  set  by  common  consent,  in  parliament." 

"...  that  no  man  hereafter  be  compelled  to  make  or 
yield  any  gift,  loan,  benevolence,  tax,  or  such  like  charge,  without 
common  consent  by  the  act  of  parliament." 

"That  levying  money  for  or  to  the  use  of  the  Crown  by  pre- 
tence of  prerogative,  without  grant  of  Parliament,  for  longer 
time,  or  in  other  manner,  than  the  same  is  or  shall  be  granted,  is 
illegal." 

".  .  .  all  men  .  .  .  cannot  be  taxed  or  deprived  of  their 
property  for  publick  uses  without  their  own  consent  or  that  of 
their  representatives.    .    .    ." 

"For  imposing  Taxes  on  us  without  our  Consent." 

"Each  individual  of  the  society  has  a  right  to  be  protected  by 
it  in  the  enjoyment  of  his  life,  liberty,  and  property,  according 
to  standing  laws.  He  is  obliged,  consequently,  to  contribute  his 
share  to  the  expense  of  this  protection ;  to  give  his  personal  ser- 
vice, or  an  equivalent  when  necessary;  but  no  part  of  the  prop- 
erty of  any  individual  can,  with  justice,  be  taken  from  him,  or 
applied  to  public  use,  without  his  own  consent,  or  that  of  the 
representative  body  of  the  people.  In  fine,  the  people  of  this 
Commonwealth  are  not  controllable  by  any  other  laws  than  those 
to  which  their  constitutional  representative  body  have  given 
their  consent.  And  whenever  the  pubHc  exigencies  require  that 
the  property  of  any  individual  should  be  appropriated  to  public 
uses,  he  shall  receive  a  reasonable  compensation  therefor." 

No  subsidy,  charge,  tax,  impost,  or  duties  ought  to  be  estab- 
lished, fixed,  laid,  or  levied,  under  any  pretext  whatsoever,  with- 
out the  consent  of  the  people  or  their  representatives  in  the 
legislature. 

(For  State  Constitutions,  see  Book  III,  §§  90,  330,  335,  340, 
310,  311,  312,  314,  320,  322.) 


86 


CONSTITUTIONAL   PRINCIPLES 


[nooK  II 


mil  of 

ClauNt>  S> 


Virpriiiia 
ntll  of 
RfKhtN, 
Sec.  12 

Mnj«!«.  r>ecl. 
of  RiKhtH, 
Clnuite  X\l 


XXI 


(d)    Miscellaneous  Rights 

Freedom  of  Speech 

"That  the  freedom  of  speech,  and  debates  or  proceedings  in 
Parliament,  ou^ht  not  to  be  impeached  or  questioned  in  any 
court  or  place  out  of  Parliament." 

"That  the  freedom  of  the  press  is  one  of  the  great  bulwarks  of 
liberty,  and  can  never  be  restrained  but  by  dcspotick  govern- 
ments." 

"The  liberty  of  the  press  is  essential  to  the  security  of  freedom 
in  a  State:  it  ought  not,  therefore,  to  be  restrained  in  this 
Commonwealth." 

"The  freedom  of  deliberation,  speech  and  debate,  in  either 
house  of  the  legislature  is  so  essential  to  the  riglits  of  the  people, 
that  it  cannot  be  the  foundation  of  any  accusation  or  prosecution, 
action  or  complaint  in  any  other  court  or  place  whatsoever." 


Bill  of 
Clause  5 

Mass.  Decl. 
of  Rif?lit8, 
Clause  XIX 


XXI 


Right  to  Petition 

"That  it  is  the  right  of  the  subject  to  petition  the  King,  and 
all  commitments  and  prosecutions  for  such  petitioning  are  illegal." 

"The  people  have  a  right,  in  an  orderly  and  peaceable  manner, 
to  assemble  to  consult  upon  the  common  good ;  give  instructions 
to  their  representatives,  and  to  request  of  the  legislative  body,  by 
the  way  of  addresses,  petitions,  or  remonstrances,  redress  of  the 
wrongs  done  them,  and  of  the  grievances  they  suffer." 

"The  freedom  of  deliberation,  speech,  and  debate,  in  either 
house  of  the  legislature,  is  so  essential  to  the  rights  of  the  people, 
that  it  cannot  be  the  foundation  of  any  accusation  or  prosecution, 
action  or  complaint,  in  any  other  court  or  place  whatsoever." 


Virginia 
Bill  of 
Rights, 
Sec.  IG 


Mass.  Decl. 
of  Rights, 
III 


Religion 

"That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and 
the  manner  of  discharging  it,  can  be  directed  only  by  reason  and 
conviction,  not  by  force  or  violence,  and  therefore  all  men  are 
equally  entitled  to  the  free  exercise  of  religion,  according  to  the 
dictates  of  conscience;  and  that  it  is  the  mutual  duty  of  all  to 
practise  Christian  forbearance,  love,  and  charity,  towards  each 
other." 

"And  every  denomination  of  Christians,  demeaning  them- 
selves peaceably,  and  as  good  subjects  of  the  commonwealth, 
shall  be  equally  under  the  protection  of  the  law :  and  no  subordi- 
nation of  any  one  sect  or  denomination  to  another  shall  ever  be 
established  by  law." 


Virginia 
Bill  of 
Rights, 
See.  lO 


Search  Warrants 

"That  general  warrants,  whereby  an  officer  or  messenger  may 
be  commanded  to  search  suspected  places  without  evidence  of  a 
fact  committed,  or  to  seize  any  person  or  persons  not  named,  or 
whose  offence  is  not  particularly  described,  and  supported  by 
evidence,  are  grievous  and  oppressive,  and  ought  not  to  be 
granted." 


CHAP.   l] 


CONSTITUTIONAL   PRINCIPLES 


87 


MiiNH.  IJeol. 
of  Ui^IitM, 
XIV 


tl.  S.  Consti- 
tution, 
Art.  IV 


"Every  subject  has  a  right  to  be  secure  from  all  unreasonable 
searches,  and  seizures,  of  liis  person,  liis  houses,  his  papers,  and 
all  his  possessions.  All  warrants,  therefore,  are  contrary  to  this 
right,  if  the  cause  or  foundation  of  them  be  not  previously  sup- 
ported by  oath  or  affirmation,  and  if  the  order  in  tlie  warrant  to  a 
civil  officer,  to  make  search  in  suspected  places,  or  to  arrest  one 
or  more  suspected  persons,  or  to  seize  tlicir  property,  be  not 
accompanied  with  a  special  designation  of  the  persons  or  objects 
of  search,  arrest,  or  seizure:  and  no  warrant  ought  to  be  issued 
but  in  cases,  and  with  the  formalities  prescribed  by  the  laws." 

"The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon  prob- 
able cause  supported  by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized." 

(For  State  Constitutions,  see  Book  III,  §§  71,  136.) 


IV.     POLITICAL   RIGHTS 


Bill  of 
Ri^lits, 
Clanse  8 

Virginia 
Bill   of 
Riglits, 
Sec.  O 


Masjii.  Decl. 
of  Riglits, 
IX 


V.  S.  Constl- 
tntion,  Fif- 
teenth Auit. 


(a)  Elections 
"That  election  of  members  of  Parliament  ought  to  be  free." 

"That  elections  [of  representatives]  ought  to  be  free,  and  that 
all  men  having  sufficient  evidence  of  permanent  common  in- 
terest with,  and  attachment  to  the  community  have  the  right  of 
suffrage . " 

"All  elections  ought  to  be  free;  and  all  the  inhabitants  of 
this  Commonwealth  having  such  qualifications  as  they  shall 
establish  by  their  frame  of  government,  have  an  equal  right  to 
elect  officers,  and  to  be  elected,  for  public  employments." 

"The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  State,  on 
account  of  race,  color,  or  previous  condition  of  servitude. 

"  The  congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation." 

(For  State  Constitutions,  see  Book  III,  §§  230,  235,  240,  etc.) 


(b)  Legislatures 

Bill  of  "And  that  for  redresse  of  all  grievances,  and  for  the  amending, 

Clau'se'is         strengthening,  and  preserveing  of  the  lawes,  Parlyaments  ought 
to  be  held  frequently." 

MaH!<.  Deoi.  The  legislature  ought  frequently  to  assemble  for  the  redress  of 

2^f  Risiits,       grievances,  for  correcting,  strengthening,  and  confirming  the  laws, 
and  for  making  new  laws,  as  the  common  good  may  require. 
(For  State  Constitutions,  see  Book  III,  §  277.) 


Vipprinla 
Bill  of 
Rierlits, 
Sec.  2 


(c)  Theory  of  Government 

"That  all  power  is  vested  in,  and  consequently  derived  from, 
the  people ;  that  magistrates  are  their  trustees  and  servants,  and 
at  all  times  amenable  to  them." 


88 


CONSTITUTIONAL   PRINCIPLES 


[book  II 


A'irK'Inla 
Hill  of 
IliulitM, 
Sec.  ;{ 


Declaration 
of  Iiule- 
Itt'iidence; 
3,4 


Mass.  Con- 

Ntitntion, 

Preuinble 


Mass.  Deel. 
of  Rights, 
IV 


VII 


VIII 


"That  government  is,  or  oupht  to  be,  instituted  for  the 
common  benefit,  protection  and  security  of  the  people,  nation,  or 
comiiiuiiity ;  of  all  (he  various  modes  and  forms  of  government, 
that  is  best,  wliicii  is  capable  of  i)roducinf^  the  greatest  degree  of 
liappiness  and  safety,  and  is  most  effectually  secured  against  the 
danger  of  maladministration;  and  that,  whenever  any  govern- 
ment shall  be  found  inadeciuate  or  contrary  to  these  purj)oses,  a 
majority  of  the  comnumity  hath  an  indubitable,  imalienable  and 
indefeasible  right,  to  reform,  alter  or  abolish  it,  in  such  manner  aa 
shall  be  judged  most  conducive  to  the  public  weal." 

"That  to  secure  these  rights.  Governments  are  instituted 
among  Men,  deriving  their  just  powers  from  the  consent  of  the 
governed.  That  whenever  any  Form  of  Government  becomes 
destructive  to  these  ends,  it  is  the  Right  of  the  People  to  alter  or 
to  abolish  it,  and  to  institute  new  Government,  laying  its  founda- 
tion on  such  principles  and  organizing  its  powers  in  such  form, 
as  to  them  shall  seem  most  likely  to  effect  their  Safety  and 
Happiness." 

"The  end  of  the  institution,  maintenance, and  administration 
of  government,  is  to  secure  the  existence  of  the  body  politic,  to 
protect  it,  and  to  furnish  the  individuals  who  compose  it  with  the 
power  of  enjoying  in  safety  and  tranquillity  their  natural  rights, 
and  the  blessings  of  life:  and  whenever  these  great  objects  are 
not  obtained,  the  people  have  a  right  to  alter  the  government,  and 
to  take  measures  necessary  for  their  safety,  prosperity,  and 
happiness. 

"  The  body  politic  is  formed  by  a  voluntary  association  of 
individuals:  it  is  a  social  compact,  by  which  the  whole  people 
covenants  with  each  citizen,  and  each  citizen  with  the  whole 
people,  that  all  shall  be  governed  by  certain  laws  for  the  common 
good.  It  is  the  duty  of  the  people,  therefore,  in  framing  a  con- 
stitution of  government,  to  provide  for  an  equitable  mode  of 
making  laws,  as  well  as  for  an  impartial  interpretation  and  a 
faitliful  execution  of  them;  that  every  man  may,  at  all  times, 
find  his  security  in  them." 

"  The  people  of  this  commonwealth  have  the  sole  and  exclusive 
right  of  governing  themselves,  as  a  free,  sovereign,  and  independ- 
ent state;  and  do,  and  forever  hereafter  shall,  exercise  and  enjoy 
every  power,  jurisdiction,  and  right,  which  is  not,  or  may  not 
hereafter  be,  by  them  expressly  delegated  to  the  United  States  of 
America,  in  Congress  assembled." 

"  All  power  residing  originally  in  the  people,  and  being  derived 
from  them,  the  several  magistrates  and  officers  of  government, 
vested  with  authority,  whether  legislative,  executive,  or  judicial, 
are  their  substitutes  and  agents,  and  are  at  all  times  accountable 
to  them." 

"  Government  is  instituted  for  the  common  good ;  for  the  pro- 
tection, safety,  prosperity,  and  happiness  of  the  people;  and  not 
for  the  profit,  honor,  or  private  interest  of  any  one  man,  family,  or 
class  of  men :  Therefore  the  people  alone  have  an  incontestable, 
unalienable,  and  indefeasible  right  to  institute  government;  and 
to  reform,  alter,  or  totally  change  the  same,  when  their  protection, 
safety,  prosperity,  and  happiness  require  it." 

"  In  order  to  prevent  those  who  are  vested  with  authority  from 
becoming  oppressors,  the  people  have  a  right,  at  such  periods  and 


CHAP.    l] 


CONSTITUTIONAL   PRINCIPLES 


89 


in  such  manner  as  they  shall  estabhsh  by  their  frame  of  govern- 
ment, to  cause  their  public  officers  to  return  to  private  life ;  and 
to  fill  up  vacant  places  by  certain  and  regular  elections  and 
appointments." 

(For  State  Constitutions,  see  Book  III,  §§  4,  6,  11,  181,  182, 
183,  184,  185.) 


Act  of  Set- 
tlement 
(1700) 


Virginia 
Bill   uf 
Rights, 
Sec.  5 


Mass.  Decl. 
of  Riglxts, 
XXX 


IT.  S.  Constl- 
tation,  I,  1 


(d)    The  Separation  of  the  Powers 

"That  no  person  who  has  an  office  or  place  of  profit  under  the 
king,  or  receives  a  pension  from  the  Crown,  shall  be  capable  of 
serving  as  a  member  of  the  House  of  Commons." 

"That  the  legislative  and  executive  powers  of  the  State  should 
be  separate  and  distinct  from  the  judiciary ;  and  that  the  members 
of  the  two  first  may  be  restrained  from  oppression,  by  feeling  and 
participating  the  burthens  of  the  people,  they  should,  at  fixed 
periods,  be  reducted  to  a  private  station,  return  into  that  body 
from  which  they  were  originally  taken,  and  the  vacancies  be 
supplied  by  frequent,  certain,  and  regular  elections,  in  which  all, 
or  any  part  of  the  former  members,  to  be  again  eligible,  or  in- 
ehgible,  as  the  laws  shall  direct." 

"  In  the  government  of  this  commonwealth,  the  legislative 
department  shall  never  exercise  the  executive  and  judicial  powers, 
or  either  of  them :  the  executive  shall  never  exercise  the  legisla- 
tive and  judicial  powers,  or  either  of  them :  the  judicial  shall  never 
exercise  the  legislative  and  executive  powers,  or  either  of  them: 
to  the  end  it  may  be  a  government  of  laws  and  not  of  men." 

"All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States.  ..."  (See  II,  1;  III,  1,  similarly 
expressed  as  to  the  other  two  powers.) 


90 


CONSTITUTIONAL   PRINCIPLES 


[book  II 


CHAPTER   II 

HISTORICAL   DIGEST   OF  ENGLISH   SOCIAL 
LEGISLATION 


lOGG 

1087 

William 

Knfiis 

llOO 

1  Hen.  I 


1136 

1  Stephen 


1154 

1  Hen.  II 


1159 


11C4 

10  Hen.  II 


1181 

28  Hen.  II 


118S 

3G  Hen.  II 


1193 
Richard  I 


1203 
John 


The  Conquest. 

Charter  of  Henry  I  ("  of  Liberties  ")  restores  the  laws 
of  Edward  the  Confessor  "  with  the  amendments  made 
by  my  father  with  the  counsel  of  his  barons."'  First 
recognition  of  personal  property  at  a  man's  death.  It 
is  to  be  divided  between  his  widow  and  heirs. 

Charter  of  Stephen  mainly  concerning  church  matters, 
simony,  and  forests;  but  promises  to  observe  "  good  and 
ancient  laws  and  just  customs  " ;  and  again  "  all  good 
laws  and  just  customs  which  they  had  in  the  time  of 
King  Edward." 

Confirms  "  liberties  and  free  customs  "  to  "  all  counts 
and  barons  and  to  all  men." 

Scutage  substituted  for  military  service.  Institution 
of  the  "  Grand  Assize"  or  trial  by  jury  (Taswell-Lang- 
mead,  p.  71)  supersedes  old  modes  of  trial  by  battle 
(Norman)  and  compurgation  (Saxon). 

Constitutions  of  Clarendon  subjected  the  church  and 
priests  to  the  secular  (common)  law  (I  Taylor,  287), 
the  church  courts  still  retaining  jurisdiction  over  offences 
between  the  clergy,  marriage,  sexual  relations,  slander, 
usury,  and  wills. 

Assize  of  Arms  revives  the  ancient  fjTd  (militia). — 
Glanvil  Justiciar. 

Saladin  tithe ;  first  taxation  of  personal  property. 

Tax  of  one-fourth  of  every  person's  revenue  or  goods 
to  ransom  the  King. 

Tax  of  one-seventh  on  thie  barons,  (1207)  tax  of  one- 
thirteenth  on  every  man. 


CHAP.   Il]     ,  HISTORICAL   DIGEST  91 

1313  John  surrenders  England  to  the  Pope  and  takes  it 

back  in  feud  for  tribute  of  1000  marks.    Trial  by  ordeal 
abolished  by  the  Latcran  Council. 

'21K  Maqna  Carta.     C.  7.     Establishment  of  the  widow*s 

John  ^ 

dower.  C.  12.  No  scutage  or  aid  (tax)  shall  be  imposed 
in  our  kingdom  unless  by  the  comiuon  council  of  our 
realm.  C.  14.  In  order  to  take  the  common  council  of 
the  realm  in  the  imposition  of  aids  the  King  shall  smnmon 
tlie  archbishops,  earls,  and  barons  by  separate  writ,  and 
all  other  tenants  in  chief  by  general  writ,  with  the  40 
days'  notice ;  and  the  consent  of  those  present  shall  bind 
those  absent.  [These  two  clauses  were  omitted  in  the 
re-issue  of  Henry  III,  and  only  returned  in  Edward  I, 
Confirmation  of  Charters  (1297).]  C.  13.  Confirms 
ancient  liberties  and  customs  of  London  and  of  all  other 
cities  and  free  ports.  C.  17.  Common  Pleas :  Court  shall 
not  follow  the  King,  but  be  held  in  some  place  certain. 
C.  20.  Fines  to  be  reasonable ;  with  exemption  of  tools, 
implements  of  husbandry,  stock  in  trade.  C.  39.  The 
great  Liberty  statute :  "  No  freeman  shall  be  taken  or 
imprisoned  or  be  disseized  [of  his  freehold  or  liberties  or 
his  free  customs,  in  the  Charter  of  Henry  III],  or  be  out- 
lawed or  exiled  or  any  othenvise  destroyed ;  nor  will  we 
go  upon  him  nor  send  upon  him  but  by  law^ful  judgment 
of  his  peers  or  by  the  law  of  the  land.  C.  40.  We  will 
sell  to  no  man,  we  will  deny  or  delay  to  no  man  either 
right  or  justice."  C.  34.  The  Avrit  "praecipe  "  not  to 
issue  to  oust  local  courts  of  jurisdiction.  C.  36.  The 
wa-it  of  inquest  of  life  or  limb  [predecessor  of  habeas 
corpus]  to  be  given  gratis  and  not  denied.  C.  45.  Jus- 
tices to  be  appointed  of  such  as  know  the  law.  (Omitted 
in  Charter  of  Hen.  III.)  C.  41.  Merchants  to  have 
safe  conduct  in  England  in  time  of  peace,  subject  only 
to  the  ancient  and  allowed  customs  not  to  evil  tolls;  in 
time  of  war  they  shall  be  attached,  without  injury,  until 
it  be  Imown  "  how  our  merchants  are  treated  in  such 
hostile  state ;  and  if  ours  be  safe,  the  others  shall  be  safe 
also."  C.  42.  Any  one  may  leave  the  kingdom,  and  re- 
turn at  will,  except  in  time  of  war  (omitted  in  Charter  of 
Henry  III).  C.  60.  Extends  these  customs  and  liberties 
to  the  whole  nation. 


12GG 

61  Hen.  Ill 


92  CONSTITUTIONAL   rRINCIPLES  [bOOK   II 

1217  Ilciirv    III   reissues  charier,  oniiUinf:^  clauses  12,  14, 

45;  improving  clause  39;  and  adding  clause  43  con- 
cerning JVIortinain. 

1226  Charter  of  the  Forest  and  reissue  of  Magna  Carta. 

1235  C.  2.    Slatute  of  Merlon:  no  usury  permitted  against 

2(>  Hen.  Ill  '  •'    ^  ° 

minors.  Children  born  before  marriage  to  be  illegiti- 
mate. 

1253  In  the  King's  presence,  the  Archbishop  of  Canterbury 

37  Hen.  Ill     ^^^   ^|j   ^^^^   bishops,   "apparelled   in   pontificals,    with 

tapers  burning"  curse  and  excommunicate  all  who  break 

the  charters  or  "  the  liberties  or  other  customs  of  the 

realm  of  England." 

1264  Citizens  of  towns  first  represented  in  Simon  de  Mont- 

fort's  parliament. 

The  assize  of  bread  and  heer.  Fixes  the  price  of 
bread  according  to  the  cost  of  wheat,  and  two  gallons  of 
ale  for  a  penny,  with  barley  at  205.  The  first  French 
statute;   previously  all  were  in  Latin. 

12G7  Statnfe  of  Marlborough.    Concerns  actions  concerning 

52  Hen.  Ill     j.p^|  estate  and  trials  of  clerks  for  murder.    Fanner  shall 
commit  no  waste. 

1275  Westminster  the  First.     First  use  of  the  word  Par- 

liament. Common  right  to  be  done  to  rich  and  poor. 
Statute  concerns  principally  criminal  law.  Nothing  to 
be  a  wreck  from  which  a  dog  or  cat  escapes  quick  out  of 
the  ship.  No  disturbance  of  free  elections  for  parlia- 
ment. Customs  tax  on  wool.  Fines  to  be  reasonable. 
Slander  made  criminal.  Eavishment  of  women  of  full 
age  without  their  consent,  or  of  maidens  under  age  with 
or  without,  is  now  made  a  crime  by  secular  law,  pun- 
ished by  fine  and  two  years'  imprisonment.  "  Excessive 
toll,  contrary  to  the  common  custom  of  the  realm,"  for- 
bidden in  Market  towns.  Parties  indicted,  etc.,  to  have 
the  writ  de  odio  et  atia  "lest  they  be  kept  long  in 
prison,  like  as  it  is  declared  in  Magna  Carta."  —  This 
great  statute  the  first  complete  code  of  English  law. 

1275  Statute  of  Bigamy  aimed  against  priests  with  more 

than  one  wife  refers  to  the  Pope  as  "  the  Bishop  of 
Eome." 


CHAP.    Il] 


HISTORICAL   DIGEST 


93 


1279 


128:t 

11   L:d.  I 

( Ile-enac-ted 
iL'Sf)  and 
called  the 
Statute 
Merchant.) 


1284 


1285 
13  Ed.   I 


1285 

13  Cd.  I 


1285 


1289 

IS  E:a.  I 


127G  or  1 

(Time 
uncertain 


1295 


1297 
25  Bd.  I 


1300 


1305 
33  Ed.  I 


290 

) 


Statute  of  Mortmain. 

Statute  of  Acton  Burncl  provides  for  speedy  recovery 
of  debts  due  merchants.  Foundation  of  the  modern  law 
of  pledge,  sales  of  collateral,  etc.  If  he  have  no  goods 
to  be  seized  the  debtor  to  be  imprisoned,  but  "  the  cred- 
itor shall  find  him  bread  and  water,"  and,  if  a  stranger, 
may  recover  expenses  of  liis  trip  to  England  (1285). 
Does  away  with  the  Droit  D'Aubaine.  Provides  gen- 
erally for  the  recovery  of  ordinary  debts;  but  Jews  are 
excluded  from  its  provisions. 

Statute  of  Wales.  A  complete  code  of  procedure  for 
Wales,  Avith  jury  trial. 

Westminster  the  Second.  De  Donis.  A  still  more 
complete  code  than  Marlborough.  These  two  codes 
caused  Edward  I  to  be  named  the  English  Justinian, 
but  mainly  concern  criminal  law  and  land  ownership. 
First  game  law,  protecting  salmons,  c.  47. 

Statute  of  Winchester.  Provides  for  the  gates  of  great 
towns  to  be  shut  at  sunset,  and  no  citizen  to  bear  arms, 
nor  taverns  to  sell  drink,  after  9  p.  m.  The  duties  of 
the  watch  described  in  Dogberry's  language. 


Statutes  for  London. 

Statute  of  Bakers.    The  first  pure  food  law. 
ment  of  forestallers. 


Punish- 


Wcstminster  Third,  or  Quia  Emptores.  Affects  land 
tenures. 

Statute  of  Quo  Warranto.  (All  offices  and  privileges 
may  be  tried  and  challenged  in  the  courts.) 

Statute  concerning  Jews:  Usury  forbidden.  Chris- 
tian debtors  to  retain  half  of  their  substance.  Jews 
must  wear  mark  of  two  tables  joined,  on  coat.  Quia 
Emptores. 

The  Model  Parliament. 

The  Confirmation  of  the  Charters.  No  aid  or  tax  with- 
out common  consent  of  the  realm  and  for  the  common 
profit. 

Articles  upon  the  Charters. 

First  statute  of  conspiracy  (in  maintaining  law  suits 
only).    Else  of  chancery  jurisdiction.    Year  books  begin. 


94 


CONSTITUTIONAL   PRINCIPLES 


[book   II 


1309 


1300 
3  Kd. 
5  Kd. 


II 


1322 

15  Ed.  II 


1330 
1331 


9  Ed. 
1335 


III 


1336 

10  Ed.  Ill 


1337 

11  Ed.  Ill 


1340  or  1328 
14  Ed.  Ill 


1340 

14  Ed.  Ill 


1344 

18  Ed.  Ill 


Summary  of  Grievances:  seizure  of  supplies  by  King; 
new  customs  on  wine  and  cloth  and  other  imports 
whereby  their  price  to  the  people  is  enhanced;  current 
coin  debased;  petitions  of  Commons  to  Parliament  not 
received;  delay  of  actions  at  law;  pardons  to  felons; 
trial  of  civil  cases  by  constables;   escheats. 

Statute  of  Stamford.  All  duties  suspended  "  in  order 
to  know  what  advantage  will  accrue  to  the  people 
thereby." 

Abolition  of  "  new  "  customs  duties.  The  King  shall 
not  go  out  of  the  realm.  First  statute  restraining  chan- 
cery jurisdiction,  forbidding  arrest,  conviction,  or  for- 
feiture without  jury. 

Assertion  of  right  of  commonalty  to  share  in  legis- 
lation. End  of  scutage.  Customs  become  part  of  per- 
manent revenue. 

Yearly  sessions  parliament,  law  for. 

Statute  against  invasion  of  common-law  jurisdiction 
by  the  Chancellor. 

Statute  of  Yorl\  Allows  free  trading  in  England  to 
foreign  merchants.  Statute  de,  Moneta;  forbids  carrying 
money  abroad.  About  this  time  (records  contradictory, 
see  1285)  the  first  law  making  forestalling  penal. 

Unanimous  verdict  of  jury  of  twelve  now  necessary. 
De  Cihariis.    Forbids  more  than  two  courses  of  three 
dishes  each  for  dinner  or  supper. 

Felony  to  carry  wool  out  of  England  or  to  wear  cloth 
made  out  of  England.  No  clothes  made  beyond  seas  to 
be  brought  into  England.  The  right  to  wear  furs  to  be 
accorded  the  nobility  only. 

All  merchants  allowed  to  come  freely  into  the  King- 
dom. Abolition  of  the  laws  of  staple.*  Export  of  wool 
restricted. 

"  The  realm  and  people  of  England  shall  not  be  sub- 
ject to  the  King  or  people  of  France." 

In  the  royal  edict  issued  the  year  he  assumed  the  title 
King  of  France,  King  Edward  also  deprecates  any  in- 
ference being  drawn  from  his  assuming  the  Flower  de 
Luces  in  the  first  quarter  of  his  arms. 

This  statute  complains  that  the  French  king  is  tr\dng 
to  destroy  the  English  language.     The  statute  itself  is 


CHAP,  iij 


HISTORICAL  DIGEST 


95 


1348 


1349 
23  Kd. 


Ill 


1330 


1350 


1 350 
25  E}d. 


Ill 


1352 
1353 


written  in  French.    All  persons  may  buy  or  export  wool ; 
the  seas  to  be  open  to  merchants. 

Herbert  Spencer  notes  that  at  this  time  the  Court  of 
Chancery  became  the  Court  of  Equity  with  power  to 
relieve  in  certain  cases  and  a  fixed  abode.  The  Black 
Death. 

The  first  statute  of  laborers.  Eequires  all  persons  able 
in  body  under  sixty  to  do  labor  to  such  persons  as  require 
labor  or  else  be  committed  to  gaol. 

No  workman  or  servant  can  depart  from  service  before 
the  time  agreed  upon;  the  old  wages  and  no  more  shall 
be  given.  Victuals  shall  be  sold  only  at  reasonable 
prices.  (Apparently  these  prices  were  to  be  fixed  by 
the  mayor.)  C.  7  provides  that  no  person  shall  give 
anything  to  a  beggar  who  is  able  to  labor.  Barring- 
ton  notes  that  this  statute  is  probably  illegal  because  the 
Commons  are  not  mentioned  as  having  joined  in  its  en- 
actment. It  recites  the  great  increase  of  wages  by  reason 
of  the  plague. 

Herbert  Spencer  has  a  note  that  this  year  privileges  of 
the  trade  guilds  were  confirmed  by  statute  after  two  cen- 
turies of  struggle.  Tliis  statute,  however,  cannot  be 
found  in  the  Statutes  at  Large. 

The  amended  statute  of  laborers.  This  law  was  joined 
in  by  the  Commons  and  provides  elaborately  for  the 
amount  of  wages  to  be  paid  all  sorts  of  service,  including 
agricultural  service.  Thus,  common  laborers  one  penny, 
mowers  three  pence  a  day.  At  this  time  the  Black 
Prince,  the  head  of  the  army,  was  paid  20  shillings  a 
day,  carpenters  two  or  three  pence,  masons  three  or  four 
pence,  servants  one-half  a  penny,  tilers  three,  thatchers 
of  fern  and  straw  3  pence  a  day.     (Confirmed  in  1378.) 

The  statute  of  cloths.  C.  3  of  this  statute  contains  a 
more  severe  provision  against  forestalling  wines  and 
victuals,  the  buyer  to  forfeit  the  value  of  the  amount  of 
goods  he  forestalled,  with  two  years'  imprisonment.  This 
law  confirmed  in  2  R.  II,  1378. 

Indictments  made  necessary  by  statute. 

Statute  of  the  staple  re-established  and  enlarged;  cre- 
ates staple  towns,  giving  a  law  for  the  staple  of  wood, 
wool,  lead,  and  leather,  and  fixing  the  rent  of  houses  in 


96 


CONSTITUTIONAL  PRINCIPLES 


[book   II 


1R54 

2H  Kd.  Ill 


1.100 

34  Kd.  Ill 


1303 

36  Kd.  Ill 


1376 

51  Ed.  Ill 


1377 

2  Rich.  II 


staple  town  at  a  reasonable  rate ;  merchandise  to  be  freely 
sold  at  tlu'  staple,  if  not  forestalled.  Consent  of  l^ar- 
liament  fully  recognized  as  necessary  even  to  indirect 
taxation  (I  Taylor,  490). 

Another  confinnalion  of  tlic  cliariers,  notable  because 
this  time  the  great  clause  in  the  jMagna  Carta  uses  the 
words  "  due  process  of  law "  instead  of  the  previous 
phrases  "  law  of  the  land,"  "  judgment  of  his  peers/' 
etc.    The  export  of  iron  is  forbidden. 

Confirms  the  statute  of  laborers,  and  allows  work  in 
gross,  i.  e.,  by  contract,  if  well  and  lawfully  done,  and 
declares  void  all  alliances  and  covins  between  masons, 
carpenters  and  guilds,  chapters  and  ordinances.  La- 
borers refusing  work  may  be  imprisoned.  C.  10  punishes 
laborers  departing  to  another  county.  This,  though 
claimed  to  have  been  repealed  by  general  words  in  the 
5  Elizabeth,  was  not  expressly  repealed  until  1869. 

Parliament  required  to  be  held  once  a  year,  and  pleas 
to  be  in  the  English  language. 

Fixes  the  price  of  hens  and  chickens,  capons  and 
geese,  at  from  one  to  four  pennies,  the  reason  of  such 
a  statute  being  alleged  to  be  the  great  deamess  of  such 
articles  in  the  kingdom.  By  c.  5  merchants  are  for- 
bidden to  ingress  or  enhance  the  prices  of  them,  and  are 
required  to  deal  in  only  one  kind  of  goods,  and  in  the 
same  way  handicraftsmen  were  allowed  to  "  use  but  one 
mystery."  This  statute  also  prescribes  in  great  detail 
for  the  apparel  of  all  sorts  and  conditions  of  persons, 
their  wives  and  servants.  The  part  of  the  law  forbid- 
ding merchants  from  using  more  than  one  kind  of  mer- 
chandise was,  however,  repealed  the  following  year,  and 
it  was  declared  that  "  all  people  shall  be  free  as  they 
were  at  all  times  before." 

Ordinance  that  women  might  not  sue  in  court  by  way 
of  maintenance  or  reward,  especially  Alice  Ferrers. 
First  impeachment  by  Commons,  Nevil  and  Latimer. 

Last  severe  statute  concerning  villeinage,  requiring  vil- 
leins refusing  to  labor  to  be  committed  to  prison  without 
bail  at  the  complaint  of  the  landlord.  Villeins  fleeing 
to  cities  were  made  free  after  a  year  and  a  day. 


CHAP.   Il]  HISTORICAL   DIGEST  97 


i37»  First  statute  concerning  frauds  by  debtors  against 

creditors. 


2  Rich.  II 


insi  All  persons  not  great  lords  or  merchants  forbidden  to 

*** '■  leave  the  Jiingdom.     No  goods  to  be  exported  or  im- 

ported save  in  English  ships,  except  (see  amending 
statute  of  1381)  where  no  English  ships  are  to  be  had. 
Exportation  of  gold  and  silver  definitely  forbidden. 
Attendance  at  Parliament  made  compulsory. 

138.3  Wat  Tyler  leads  rising  against  villeinage.    Growth  of 

small  freeholders.  Villeins  demand  commutation  of  ser- 
vice to  4d  an  acre  rent,  and  freedom  of  commerce  in 
market  towns. 

First  laws  against  vagabonds. 

Barons  protest  against  Roman  law,  and  judges  forbid 
it  to  be  cited  in  the  courts  (T.-L.  145). 

1.38S  Laborers  restricted  to  their  hundred,  and  following  the 

same  trade  as  father  compulsory  after  twelve.  Wages 
of  agricultural  laborers  fixed  as  well  as  of  handicrafts- 
men at  low  rates,  —  shepherds  ten  shillings  a  year,  plow- 
men seven,  women  laborers  six  shillings.  Servants  may 
carry  bows  and  arrows,  not  swords ;  may  not  play  tennis 
or  football.  Servants  leaving  employment  required  to 
cdSTy  testimonial,  and  none  to  receive  servants  with- 
out such  letter,  —  the  original  of  the  black  list.  The 
first  Poor  Law;  those  unable  to  work  are  to  be  sup- 
ported in  the  town  where  bom.  Villeinage,  which  be- 
gan at  the  Norman  Conquest,  according  to  Fitz-Herbert, 
"  because  the  Conqueror  gave  lordships  with  all  the  in- 
habitants to  do  with  them  at  their  pleasure  to  his  prin- 
cipal followers,  and  they,  needing  servants,  pardoned 
the  inhabitants  of  their  lives,  and  caused  them  to  do 
all  manner  of  service,"  —  was  now  abolished  by  com- 
pensation in  a  money  wage  payment. 

The  institution  of  villeinage  is  last  mentioned  in  a 
commission  of  Queen  Elizabeth,  1574,  directing  Lord 
Burleigh  and  others  in  certain  counties  to  compound 
with  all  such  bondmen  or  bondwomen  for  their  manu- 
mission and  freedom. 

First  act  against  nuisances,  forbidding  corruption  of 
rivers,  etc. 

7 


98 


1380 


1»01 

15   Rich. 


CONSTITUTIONAL   PRINCIPLES 


[book   II 


II 


17  Rich.   II 


1400 

2   Uen.  IV 


1401 

2  Uen.  IV 


1402 


1403 


1406 
1407 


1412 

1  Hen.  VI 


1414 


1422-1461 


Wages  of  artisans  and  laborers  to  be  fixed  at  Easter 
and  Michael  mas  by  a  Justice  of  the  Peace,  not  as  before, 
fixed  at  a  permanent  sum. 

No  man  to  be  compelled  to  answer  before  a  Lord  of 
matters  determinable  at  common  law.  Statute  limiting 
admiralty  jurisdiction.     Eoman  law  prohibited. 

Court  of  Chancery  now  established.    ( Spence,  V,  34-1 . )  ' 

Foreign  merchants  permitted  to  carry  away  half  the 
value  of  their  imports  in  money,  spending  the  other  half 
in  English  commodities. 

First  secular  law  against  heresy,  making  it  a  capital 
offence.  Upon  conviction  by  the  ordinary  the  heretic  is 
to  be  delivered  to  the  secular  arm,  i.  e.,  burnt.  Note 
that  the  trial,  however,  still  remains  with  the  ordinary, 
i.  e.,  the  clerical  court. 

English  burgesses  who  marry  Welsh  women  disfran- 
chised. 

Laborers  not  to  work  feast  days,  nor  for  more  than 
half  a  day  before  a  holiday. 

Attorneys  to  be  learned  in  the  law  and  examined  by 
judges. 

Parliament  asserts  right  to  ratify  treaties  and  be  con- 
sulted on  wars. 

Transmutation  of  metals  into  gold  made  a  felony,  also 
breach  of  trust  and  embezzlement. 

Petition  of  31  articles. 

King  ceases  to  sit  in  Parliament.  Establishment  of 
principle  that  money  bills  must  originate  in  the  House 
of  Commons. 

On  account  of  the  felonies  committed  by  Irishmen  re- 
sorting to  the  University  of  Oxford,  all  natives  of  that 
country  obliged  to  leave  England,  except  University 
graduates,  clergymen,  and  lawyers. 

Legislation  still  by  petition  of  House  of  Commons,  but 
now  in  English. 

Personal  property  now  legally  protected.    (Spencer.) 
No  one  with  land  of  less  than  twenty  shillings  per 
annum  to  apprentice  a  son  or  daughter  within  a  city. 


CHAP.  Il] 


HISTORICAL  DIGEST 


99 


1423 
1425 


1427 


1429 


1436 
15  Hen. 


1436 


VI 


1439 

18  Hen.  VI 


1444 
23  Hen. 


VI 


1453 
31  Hen. 


VI 


1463 

3  Ed.  IV 


Pound  of  silver,  though  worth  32  shillings,  fixed  at  30s. 

Masons  forbidden  to  confederate  themselves  in  chap- 
ters, etc. 

Attempt  to  fix  wages  by  law  (1388)  again  abandoned. 
To  be  fixed  by  justices  as  in  1389  "because  Masters 
could  not  get  Servants  without  giving  higher  ^Yages  than 
allowed  by  the  Statute." 

First  disfranchising  act,  restricts  voting  qualification 
to  40s  a  year  freeholders.  Eesidence  qualifications  for 
both  electors  and  elected  —  only  abolished  in  14  Geo.  III.. 

Corn  allowed  to  be  exported  when  below  a  certain> 
price.  Importation  of  manufactured  articles  and  of 
wheat,  when  under  6s  Sd  per  quarter,  forbidden. 

First  statute  against  by-laws  in  restraint  of  trade, 
providing  for  guilds  and  the  corporate  companies  making 
unlawful  ordinances  as  to  the  price  of  their  wares  for 
their  own  profit  and  to  the  common  hurt  of  the  people 
and  such  made  penal  and  invalid  except  when  approved 
by  the  chancellor.  This  statute  re-enacted  in  1503,  19 
Hen.  VII,  c.  7. 

Exportation  of  wool  still  forbidden. 

Servant  in  husbandry  proposing  to  depart  from  his 
master  must  give  him  half  a  year's  warning.  Wages 
again  fixed,  overseers  20s,  common  husbandry  15s, 
women  10s,  etc.,  etc.,  with  meat  and  drink.  Carpenters, 
in  summer  4J  a  day,  in  winter  Sd,  etc.,  and  meat  and 
drink,  or  li/^^Z  a  day  in  lieu  thereof.  Women  2i/^(i  a  day 
and  keep  at  2d.    Eepealed  by  5  Eliz.,  c.  4. 

Prototype  of  government  by  injunction.  C.  2  recites 
Jack  Cade's  Eebellion,  declares  that  in  cases  of  riots, 
etc.,  in  the  future,  if  any  offender  be  commanded  to 
appear  in  chancery  or  before  a  council  but  disobey,  the 
chancellor,  on  certificate  thereof,  may  issue  writs  of 
proclamation  to  appear  within  one  month  or  suffer  for- 
feiture or  outlawry.  Statute  to  continue  only  seven 
years. 

First  corn  law  prohibiting  importation  of  corn,  but 
only  effective  when  the  quarter  of  wheat  or  barley,  etc., 


100  CONSTITUTIONAL   PRINCIPLES  [BOOK   II 

does  not  exceed  a  certain  price.  General  prohibition  of 
importation  of  manufactured  articles.  First  example  of 
reciprocity;  4  Ed.,  c.  5,  prohibits  importation  of  mer- 
chandise from  Burgundy  while  English  cloth  is  pro- 
hibited there.  Strict  law  regulating  apparel,  but  repealed 
twenty  years  later. 

1483  Statutes  now  begin  to  be  in  English.     C.   12,  first 

precedent  of  prohibitive  tariff  imposed  on  manufactured 
articles  only,  and  not  on  raw  materials. 

148.^  "  No   tanner  shall  be  a  currier,   nor  any  currier  a 

I  Heu.  VII        ,  „ 

tanner." 

[Hallam,  Const.  Hist.  I,  2.]  Six  liberty  rights  now 
established:  taxation  by  parliament;  no  person  to  be 
imprisoned  without  warrant;  legislation  by  consent  of 
commons ;  criminal  causes  triable  by  a  jury  of  the  count}', 
in  open  court,  from  whose  unanimous  verdict  no  appeal 
could  be  made ;  officers,  administrators,  or  soldiers  liable 
for  acts  at  the  common  law ;  impeachment  of  the  King's 
ministers. 

1487  Gives  special  authority  to  court  of  Star  Chamber  over 

riots  and  disorders. 

Dispensing  power  of  Crown  now  denied  as  to  mala 
in  se  (things  against  the  common  law). 

1495  First  suits  in  forma  pauperis. 

II  Hen.  VII 

1503  Bv-laws  of  guilds,  etc.,  restraining  suits  at  law  un- 

19  Hen.  VII  "  . 

lawful.  So  ordinances  "  against  the  common  weal  of 
the  people." 

1509  Paucity   of   legislation   due   to   attempt   at   personal 

1  Hen.  VIII  , 

government. 
1511  License   required   from   physicians   and   surgeons   to 

3  Hen.  VIII  ,  • 

practise. 

1513  The  Strode  Case.  Eight  of  Parliamentary  privilege 
established.  Benefit  of  clergy  abolished  in  murder. 
Statute  of  laborers  repealed  in  so  far  as  it  imposes  a 
penalty  on  the  master  for  giving  higher  wages  than  the 
law  allows. 

1514  Henry  VIII  manumits  two  villeins  in  the  following 
form :  "  Whereas  God  created  all  men  free  ,  ,  ." 


CHAP.   Il]  HISTOKICAL   DIGEST  101 

1514  The  most  elaborate  of  all  the  acts  fixing  the  wages  and 

hours  of  labor,  what  time  he  shall  begin  and  end  his 
work,  and  what  time  he  shall  have  for  his  meals  and 
sleep.    First  general  commission  of  sewerage. 

1B23  Wolsey's  attempt  to  intimidate  the  House  of  Commons. 

Parliament  not  summoned  for  seven  years. 

1530  Bakers,   brewers,   surgeons,    and   scriveners   declared 

not  handicraftsmen. 

1B33  New  act  against  the  forestalling,  and  rcgrating  of 

victuals,  com  and  especially  fish. 

1534  Henry  VIII  declared  supreme  head  of  the  Church  of 
England.     First  game  law  against  wild  fowl. 

1535  Statute  of  uses  and  wills.  Third  conviction  for  join- 
ing trade  union  punished  with  loss  of  ear.  (H.  Spencer, 
but  not  in  statutes  at  large.)  The  law,  27  Hen,  VIII, 
c.  25,  is  aimed  only  at  sturdy  vagabonds  and  beggars. 

1536  First  State  poor  law. 

1539  Dissolution  of  monasteries.  The  "  Bloody  Statute " 
against  heresy.  The  sacraments,  celibacy,  masses,  con- 
fessions insisted  upon.  Punishment,  burning.  The  act 
is  entitled  "  An  Act  abolishing  diversity  of  opinion  on 
certain  articles  concerning  the  Christian  religion." 

1540  First  act  against  witchcraft.  First  act  establishing 
prescriptions  in  land  titles.  First  act  for  the  breeding 
of  horses,  to  be  over  fifteen  hands. 

1539  Act  giving  royal  proclamations  of  the  King  in  Council 

the  force  of  law. 

Abuse  of  bills  of  attainder. 

1542  C.  4.     First  hanhruptcy  act,  empowering  distribution 

34  Hen.  VIII  ^£  effects,  with  penalties  against  absconders  and  fraudu- 
lent debtors.  Prohibits  Tindale's  translation  of  the 
Bible  and  directs  that  the  ISTew  Testament  in  English 
shall  not  be  read  by  women,  prentices,  and  laborers 
under  the  degree  of  yeomen. 

1545  Usury  ]a,w  —  10'^°. 

1548  Marriage  of  priests  made  lawful. 


102 


CONSTITUTIONAL   PRINCIPLES 


[book   II 


lK4ft 

»  A:  4  Ed.  VI 


16S2 


inr>3 

7  Ed.  VI 


1656 

1  P.  <&  M. 


1RC2 
6  EUz. 


1566 


1570 
13  Eliz. 


C.  5.  Unlawful  assemblies  of  twelve  to  alter  laws  or 
abate  prices,  etc.    First  (High  Church)  Prayer  Book. 

Tlie  last  act  against  regraters,  forestallers,  and  in- 
grossers.  5  Ed.  VI,  c.  14,  made  perpetual  by  13  Eliz., 
and  repealed  by  12  Geo.  III.    Origin  of  anti-trust  laws. 

Two  witnesses  required  to  treason. 

First  precedent  of  a  coal  and  fuel  law,  proliibiting 
middlemen.     The  Thirty-nine  Articles. 

Act  for  relief  of  weavers,  prohibiting  "the  ingrossing 
of  looms,"  anticipating  Marx. 

C.  4.  The  great  statute  of  laborers.  Consolidation  of 
all  previous  laws.  Eecites  that  wages  were  fixed  too 
small,  and  not  reasonable  to  this  time.  Provides  for 
many  trades,  and  no  person  to  be  hired  for  less  than  a 
year.  Compels  all  persons  not  having  an  estate  of  40s 
per  annum  to  serve  in  any  of  the  mentioned  handicrafts. 
Unmarried  persons  under  30  not  having  been  brought 
up  to  any  special  craft,  if  not  in  a  nobleman's  house- 
hold, may  be  compelled  to  labor  at  the  request  of  any 
person  using  an  art  or  mystery.  Other  persons  between 
12  and  60  compelled  to  serve  in  husbandr}'.  None  may 
leave  or  discharge  before  a  year's  time,  except  on  order 
of  a  justice  of  the  peace,  and  none  may  leave  his  city  or 
town  without  a  testimonial.  Hours  of  labor  between 
March  and  September  from  5  a.  m.  to  7  p.  m.  with 
214  hours  for  meal  times,  and  drink  times  and  sleep  2I/2 
hours.  From  September  to  May,  dawn  to  sunset. 
Wages  to  be  fixed  by  justice  of  the  peace.  Unmarried 
women  between  12  and  40  to  serve  in  like  manner;  and 
elaborate  rules  for  the  apprentices.  None  may  use  any 
manual  art  who  has  not  been  apprenticed  to  the  same. 
Masters  prohibited  from  discharging  servants  before 
their  term  without  reasonable  cause  or  ^  quarter's  warn- 
ing.   No  servant  to  be  hired  without  testimonial. 

Speaker  Onslow  tells  Elizabeth  she  is  subject  to  the 
common  law. 

The  Pope  forbids  attendance  at  the  English  Church. 

C.  5.  Fraudulent  conveyances  against  creditors  de- 
clared void. 


CHAP.    Il] 


HISTORICAL   DIGEST 


103 


1571 


1S81 


1S8S 
1572 
1601 
14  BIlz. 


1603 

1G04 
1606 


1609 


1615 


1616 


1617 


1623 

21  James  I 


Cominons  complain  of  monopolies.  First  punishment 
for  bribery  at  elections. 

First  recorded  expulsion  of  a  member  of  the  House 
of  Commons. 

Strict  censorship  of  the  press. 

C.  5.  The  first  law  against  vagabonds  and  poor  law, 
completely  re-enacted  in  43  Eliz.,  c.  2,  establishing  the 
principle  of  support  of  the  poor  by  the  public,  i.  e., 
parish,  only  that  the  able  who  refuse  work  may  be  sent 
to  the  house  of  correction  by  the  magistrates. 

Many  acts  regulating  trades,  and  encouraging  agricul- 
ture, rebuilding  villages,  etc.,  passed  during  this  period. 

Height  of  the  monopoly  abuse.  Elizabeth  promises  to 
do  away  with  them. 

James  attempts  to  control  elections.  Asserts  Divine 
Right. 

The  "  Form  of  Apology." 

Patents  granted  for  the  exclusive  sale  of  article  not 
inventions.  Beginning  of  laws  licensing  liquor  sellers, 
aimed  against  drunkenness.  James  omits  to  summon 
Parliament  and  imposes  a  duty  on  imports  without  its 
consent. 

The  Commons  object  to  laws  by  proclamation,  and  the 
King's  Bench  sustains  them. 

James  attempts  to  get  the  opinion  of  the  judges  in 
advance  and  separately. 

Case  of  Commendams.  Disgrace  of  Coke.  Judges 
now  hold  office  at  the  King's  pleasure. 

Last  laws  of  villeinage. 

C.  3.  The  statute  of  monopolies,  prohibiting  of  such 
monopolies  both  granted  and  to  be  granted,  giving 
remedy  in  double  or  treble  damages,  making  exceptions 
of  the  charters  to  municipal  corporations,  of  the  trade 
guilds  and  fellowships,  and  of  copyrights  and  tavern 
licenses. 

Legal  rate  of  interest  now  8^. 


1628 

3  Charles  I 


The  Petition  of  Right. 


104  CONSTITUTIONAL   PRINCIPLES  [BOOK   II 

1C41  Massachusetts  Body  of  Liberties.    The  Grand  Bemon' 

strance. 

1642  Arrest  of  the  Five  members.     Parliament  abolishes 

the  Star  Chamber  and  all  but  common  law  courts. 

i«43  First  Business  Corporation:    the  Fellowsliip  of  Mer- 

chant Adventurers. 

(Co'minon-         The  Instrument  of  Government. 

TFeulth) 

16G6  Appropriation  Act. 

1667  The  Statute  of  Frauds. 

1670  Immunity  of  jurymen  for  their  verdicts  finally  estab- 

lished.   General  verdicts  vindicated. 

1679  The  Habeas  Corpus  Act. 

31  Cbarles  II  ^ 

Standing  armies  begin,  in  England.    The  Mutiny,  or 
Army  Act. 

1685  Act  to  encourage  the  building  of  ships  in  England. 

Tax  on  foreign  ships  employed  in  coasting  trade. 

1689  Bill  or  Declaration  of  Rights. 

IVilliam  III 

1691  Eates  of  carriers  fixed  by  law. 

1700  -^ct  of  Settlement.    Judges'  tenure  made  for  life.    No 

pardon  pleadable  to  impeachment. 

1707  Last  royal  veto  of  an  Act  of  Parliament. 

1716  The  Septennial  Act. 


1765 


General  warrants  declared  illegal  by  Lords  Camden 
and  Mansfield. 


1776  Virginia  Bill  of  Rights. 

Declaration  of  Independence. 

1780  Massachusetts  Bill  of  Rights. 

The  Massachusetts  Constitution. 

1787  Constitution  of  the  United  States. 

1789  First  Ten  Amendments  U.  S.  Constitution. 

1794  Eleventh  Amendment  U.  S.  Constitution. 

1804  Twelfth  Amendment  TJ.  S.  Constitution. 


CHAP,  ii] 


HISTORICAL   DIGEST 


105 


1840  About  this  time  the  invention  of  the  business  corpora- 

tion with  limited  liability  to  stockholders. 

18G5  Thirteenth  Amendment  U.  S.  Constitution. 

I860  Fourteenth  Amendment  U.  S.  Constitution. 

1870  Fifteenth  Amendment  U.  S.  Constitution. 

18ST  Interstate  Commerce  Act. 

1890  Anti-Trust  (Sherman)  Act. 

1003  Bureau  of  Corporations  established.     Discrimination 

(Elkins)  Act. 

1906  Pure  Food  Law. 

1906  Eailway  Eate  Eegulation  (Hepburn)  Act. 


106  CONSTITUTIONAL   PRINCIPLES  [BOOK   II 


CHAPTER   III 

DIVISION  OF   NATIONAL   AND   STATE   POWER 

The  frontispiece  graphically  represents  the  exact  division  of  polit- 
ical and  legislative  power  between  the  States  and  the  Federal  Gov- 
ernment as  well  as  the  large  field  reserved  by  the  Constitution  to 
the  people;  and  it  does  this  even  to  the  finer  shades  of  distinction, 
as  when  powers  delegated  to  the  Nation  are,  at  the  same  time,  for- 
bidden to  the  States  or  when  they  are  shared  by  the  Nation  and  the 
States,  or  when  nothing  is  said  about  it,  so  that  the  matter  must 
depend  upon  the  interpretation  of  the  Supreme  Court.  Thus,  the 
entire  sovereign  and  legislative  power  we  will  assume  represented 
by  the  entire  circle.  Then,  drawing  a  zone  "  A  "  on  the  northwest 
of  the  circle  nearly  to  the  centre,  we  will  assume  that  "  A,"  colored 
blue  with  horizontal  lines,  comprises  all  the  powers  which  are  dele- 
gated or  permitted  to  the  Federal  Government.  A  corresponding 
zone  "  B,"  colored  blue  with  vertical  lines,  will  represent  in  like 
manner  the  powers  expressly  reserved  by  the  Federal  Constitution  to 
the  States;  though  it  is  obvious  that  all  powers  not  comprised  in 
the  zone  "  A "  must  necessarily  remain  either  with  the  States  or 
with  the  people.  It  will  be  observed  that  these  two  zones  intersect. 
The  area  covered  by  both  "  A  "  and  "  B  "  will  naturally  and  mathe- 
matically represent  the  powers  given,  by  the  express  words  of  the 
Constitution,  to  both  the  Nation  and  the  States.  These,  naturally, 
are  few  in  number. 

Now  in  a  manner  precisely  corresponding,  we  can  represent  those 
powers  which  are  denied  or  forever  withheld,  both  to  the  United 
States  and  to  the  States,  by  the  wording  or  necessary  implication  of 
the  Constitution.  These  denied  or  withheld  powers  we  have  colored 
red.  Thus,  the  zone  "  X,"  with  horizontal  lines,  comprises  all  those 
matters  which  are  expressly  or  by  necessary  implication  forbidden 
to  the  Federal  Government ;  in  like  manner  zone  "  Z,"  drawn  red 
with  perpendicular  lines,  comprises  all  those  matters  which  are  ex- 
pressly or  by  necessary  implication  forbidden  to  the  States.    Again, 


CHAP.    Ill]       DIVISION   OF   NATIONAL   AND   STATE   POWER  107 

where  these  two  zones  intersect,  is  the  area  "XZ,"  comprising  many 
most  important  matters  which,  by  the  Federal  Constitution,  are  for- 
bidden to  both  the  Nation  and  the  States;  that  is  to  say,  matters 
wliich  the  people  expressly  withheld  from  either  government  they 
were  creating.  In  a  sense,  therefore,  this  area  "  XZ  "  is  analogous 
to  "  Y,"  the  central  area,  outside  of  any  zone  permitted  to  either 
Nation  or  State ;  the  dill'erence  being  that  our  area  "  XZ  "  will  rep- 
resent those  matters  which  are  merely  denied  to  both  State  and 
Federal  power,  while  the  area  "  Y  "  will  represent  those  which  are, 
by  the  wording  of  the  Constitution  itself,  expressly  reserved  or 
declared  to  remain  with  the  people. 

But  we  have  not  yet  exhausted  all  our  shades  of  meaning.  The 
intersection  of  the  zone  "  B,"  matters  permitted  to  the  States,  with 
the  zone  "  X,"  matters  forbidden  to  the  Federal  Government,  results 
in  the  area  "  BX,"  the  peculiar  domain  of  States'  rights ;  that  is 
to  say,  those  powers  which  are  both  permitted  to  the  States  or 
reserved  to  the  States,  and,  by  the  wording  of  the  Constitution,  ex- 
pressly denied  or  forbidden  to  the  Federal  Government.  On  the 
other  hand,  the  corresponding  area  "  AZ  "  in  like  manner  represents 
those  powers  delegated  to  the  United  States  and  forbidden  expressly 
to  the  States;  that  is  to  say,  "  AZ  "  is  the  peculiar  domain  of  the 
imperialist  or  the  supporter  of  centralization;  those  great  matters, 
notably  interstate  commerce,  which,  by  interpretation  or  otherwise, 
he  would  have  given  over  solely  to  the  National  Government,  and- 
withheld  from  any  control  by  the  States. 

It  is  not  too  much  to  say  that  if  we  knew  exactly  what  matters 
fall  within  the  area  "  AZ  "  and  the  corresponding  area  "  BX  "  and 
the  central  domain  of  "  Y,"  we  should  have  the  solution  of  all  the 
questions  that  are  now  vexing  both  the  constitutional  lawyer  and 
the  general  public;  for  these  neutral  grounds,  these  contested  areas, 
grapliically  represent  both  what  is  given  or  denied  to  the  Federal 
Government,  what  is  reserved  to  the  States,  and  finally,  what  has 
never  been  parted  with  by  the  people.  Under  the  extreme  inter- 
pretation at  some  times  proposed  by  President  Eoosevelt,  the  area 
"  Y  "  almost  disappears ;  while  the  area  "  BX,"  or  indeed  the  whole 
zone  of  "  X,"  is  much  shrunken.  On  the  other  hand,  according 
to  Thomas  Jefferson  and  the  old  strict-construction  Democrats,  it 
is  the  area  "  Y  "  that  largely  expands,  and  the  area  "  AZ,"  or  in- 
deed the  whole  zone  "  Z,"  what  is  forbidden  to  the  States,  largely 
diminishes.  If  the  reader  of  this  book  will  take  the  diagram  and 
carefully,  for  himself,  decide  (for  on  some  clauses  there  may  be  a 
difference  of  opinion)  just  what  sentences  or  sections  of  the  Consti- 
tution, or  matters  or  powers  mentioned  therein,  faU  witliin  each  of 


108  COXSTITUTIONAL   PRINCIPLES  [bOOK   II 

these  nine  divisions  of  our  sj)liore  of  tlie  total  powers  of  government, 
lie  will  almost,  by  the  very  study  re(iuired,  the  close  examination 
of  the  Constitution  necessary,  become  a  good  American  constitu- 
tional lawyer.  But  it  is  needJess  to  say  that  hundreds  of  decisions 
of  the  Supreme  Court  have  been  required  to  settle  these  most 
debatable  areas,  "  AZ,"  "  BX,"  and  "  Y";  and  many  more  are  still 
required  before  we  can  be  certain  on  all  points.  That  great  power  to 
control  commerce  among  the  States,  under  which  it  seems  it  is  now 
proposed  to  bring  the  Federal  Government  into  all  the  domains  of 
law  and  life  in  such  a  manner  as  to  revolutionize  our  whole  system, 
does  it,  for  instance,  all  fall  within  the  area  "  AZ  "  ?  or  may  it  go 
into  the  rest  of  the  zone  of  "  A,"  that  is,  a  matter  over  which  some 
control  or  power,  co-ordinate,  not  subordinate  to  the  Federal  Gov- 
ernment, rests  or  remains  with  the  States?  In  like  manner,  does 
the  power  of  imposing  an  income  tax  belong  only  in  the  narrow 
area  of  "  BX  "  ?  or  may  it  go  into  the  other  divisions  of  the  zone 
of  "  B,"  powers  given  or  reserved  to  the  States,  which  yet  may  be 
exercised  concurrently  by  the  Nation? 

With  this  explanation  I  pass  (with  some  diffidence,  for  my  readers 
may  not  agree  with  me  on  all  points)  to  the  division  I  have  made 
into  our  nine  possible  categories  of  the  matters  and  powers  enumer- 
ated in  the  Federal  Constitution: 


AZ 

FEDERAL  POWERS  WHICH  ARE  FORBIDDEN  TO  THE  STATES 

All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of  the 
United  States,  which  shall  consist  of  a  Senate  and  House  of  Representatives. 
I,  1.  The  House  of  Representatives  shall  choose  their  Speaker  and  other  offi- 
cers and  shall  have  the  sole  power  of  impeacliment.  I,  2,  (5). 

The  Senate  shall  choose  their  other  officers,  and  also  a  President  pro  tempore 
in  the  absence  of  the  Vice-President.  ...  I,  3,  (5). 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments.    I,  3,  (6). 

Each  house  shall  be  the  judge  of  the  elections,  returns,  and  qualifications 
of  its  own  members,  and  a  majority  of  each  shall  constitute  a  quorum  to  do 
business;  but  a  smaller  number  may  adjourn  from  day  to  day,  and  may  be 
authorized  to  compel  the  attendance  of  absent  members,  in  such  manner,  and 
under  such  penalties,  as  each  house  may  provide.    I,  5,  (1). 

Each  house  may  determine  the  rules  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and  with  the  concurrence  of  two  tliirds,  expel  a  mem- 
ber.    I,  5,  (2). 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  parts  as  may  in  their  judgment  require  secrecy, 
and  the  yeas  and  nays  of  the  members  of  either  house  on  any  question  shall, 
at  the  desire  of  one-fifth  of  those  present,  be  entered  on  the  journal.  I,  5,  (3). 

Every  bill  wliich  shall  have  passed  the  House  of  Representatives  and  the 
Senate  shall,  before  it  become  a  law,  be  presented  to  the  President  of  the  United 
States ;   if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  ob- 


CHAP.    Ill]        DIVISION    OF   NATIONAL   AND    STATE    POWER  109 

jections,  to  that  house  in  which  it  shall  have  originated,  etc.     If  approved  by 
two-thirds  of  [each]  house  it  shall  become  a  law.     I,  7,  (2). 

The  Congress  shall  have  power  to  lay  and  collect  .  .  .  duties,  imposts,  .  .  . 
...  to  pay  the  debts  and  provide  for  the  common  defense  and  general  wel- 
fare of  the  United  States.  ...   I,  8,  (1). 

To  borrow  money  on  the  credit  of  the  United  States;   I,  8,  (2). 

To  regulate  commerce  with  foreign  nations  and  among  the  several  States, 
and  with  the  Indian  tribes;   I,  8,  (3). 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on  the  sub- 
ject of  bankruptcies  throughout  the  United  States ;  I,  8,  (4). 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and  fix  the 
standard  of  weights  and  measures;  I,  8,  (5). 

To  establish  post-offices  and  post- roads ;  1,8,  (7). 

To  constitute  tribunals  inferior  to  the  Supreme  Court;  I,  8,  (9). 

To  define  and  punish  piracies  and  felonies  committed  on  the  high  seas  and 
offences  against  the  law  of  nations;   I,  8,  (10). 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules  con- 
cerning captures  on  land  and  water;  I,  8,  (11). 

To  raise  and  support  armies,  but  no  appropriation  of  money  to  that  use  shall 
be  for  a  longer  term  than  two  years;  I,  8,  (12). 

To  provide  and  maintain  a  navy;  I,  8,  (13). 

To  make  rules  for  the  government  and  regulation  of  the  land  and  naval  forces ; 
I,  8,  (14). 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the  Union,  sup- 
press insurrections,  and  repel  invasions;   I,  8,  (15). 

To  provide  for  organizing,  arming  and  disciplining  the  militia,  and  for  gov- 
erning such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States.  ...     I,  8,  (16). 

To  exercise  exclusive  legislation  [over  the  District  of  Columbia  and]  all 
places  purchased  by  the  consent  of  the  legislature  of  the  State  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings ;  1,8,  (17). 

To  make  all  laws  wliich  shall  be  necessary  and  proper  for  carrying  into  exe- 
cution the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any  department  or  officer  thereof 
I,  8,  (18). 

.  .  .  the  net  produce  of  all  duties  and  imposts,  laid  by  any  State  on  imports 
or  exports,  shall  be  for  the  use  of  the  Treasury  of  the  United  States;  and 
all  such  laws  shall  be  subject  to  the  revision  and  control  of  the  Congress.  I, 
10,(2). 

The  executive  power  shall  be  vested  in  a  President.  .  .  .  He  shall  hold  his 
office  during  the  term  of  four  years,  and  together  with  the  Vice-President, 
chosen  for  the  same  term,  be  elected  as  follows.    II,  1,  (1). 

The  Congress  may  determine  the  time  of  choosing  the  electors  and  the  day 
on  which  they  shall  give  their  votes,  wliich  day  shall  be  the  same  throughout 
the  United  States.     II,  1,  (4). 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death,  resigna- 
tion, or  inability  to  discharge  the  powers  and  duties  of  the  said  office,  the  same 
shall  devolve  on  the  Vice-President,  and  the  Congress  may  by  law  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both  of  the  President  and 
Vice-President,  declaring  what  officer  shall  then  act  as  President,  and  such 
officer  shall  act  accordingly  until  the  disability  be  removed  or  a  President  shall 
be  elected.     II,  1,  (6). 

The  President  shall,  at  stated  times,  receive  for  his  services  a  compensation, 
which  shall  neither  be  increased  nor  diminished  during  the  period  for  which  he 
may  have  been  elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of  them.    II,  1,  (7). 


110  CONSTITUTIONAL   PRINCIPLES  [DOOK   II 

Tlie  President  shall  be  Commander-in-chief  of  the  Army  and  Navy  of  tlio 
United  States,  and  of  the  militia  of  tlie  several  States  when  called  into  the  actual 
service  of  the  United  States;  he  may  recjuire  the  opinion,  in  writinjz;,  of  the 
priiu'ij)al  oflicer  in  each  of  the  executive  departments,  upon  any  subject  relating 
to  the  duties  of  their  respective  oflices,  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  olTences  against  the  United  States,  except  in  cases  of 
impeachment.     II,  2,  (1). 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  j)rovided  two-thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and,  by  and  witli  the  advice  and  consent  of  the  Senate,  shall  ajjpoint 
ambassadors,  other  public  ministers  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  oflicers  of  the  United  States,  whose  api)ointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  law ;  but  the  Con- 
gress may  by  law  vest  the  appointment  of  such  inferior  officers,  as  they  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments.    II,  2,  (2). 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen  during 
the  recess  of  the  Senate,  by  granting  commissions  wliich  shall  expire  at  the  end 
of  their  next  session.     II,  2,  (3). 

He  shall  from  time  to  time  give  to  the  Congress  information  of  the  state  of 
the  Union,  and  recommend  to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient ;  he  may,  on  extraordinary  occasions,  convene 
both  houses,  or  either  of  them,  and  in  case  of  disagreement  between  them  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  tliink  proper;  he  shall  receive  ambassadors  and  other  public  ministers; 
he  shall  take  care  that  the  laws  be  faitlifuUy  executed,  and  shall  commission  all 
the  officers  of  the  United  States.     II,  3. 

The  President,  Vice-President,  and  aU  civil  officers  of  the  United  States  shall 
be  removed  from  office  on  impeachment  for  and  conviction  of  treason,  bribery, 
or  other  high  crimes  and  misdemeanors.    II,  4. 

The  judicial  power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time  ordain 
and  establish.     Ill,  1. 

The  judicial  power  shall  extend  ...  to  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  to  controversies  to  which  the  United  States  shall  be  a  party ;  to 
controversies  between  two  or  more  States;  between  a  State  and  citizens  of 
another  State ;  between  citizens  of  different  States ;  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different  States,  and  between  a 
State,  or  the  citizens  thereof,  and  foreign  States,  citizens,  or  subjects.    Ill,  2,  (1). 

In  all  cases  affecting  ambassadors,  other  pubfic  ministers  and  consuls,  and 
those  in  which  a  State  shall  be  a  party,  the  Supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  shall  make.    Ill,  2,  (2). 

The  Congress  shall  have  power  to  declare  the  punishment  of  treason.  .  .  . 
Ill,  3,  (2). 

.  .  .  the  Congress  may  by  general  laws  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof.     IV,  1. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging  to  the  United 
States ;  and  nothing  in  this  Constitution  shall  be  so  construed  as  to  prejudice 
any  claims  of  the  United  States  or  of  any  particular  State.     IV,  3,  (2). 

New  States  may  be  admitted  by  the  Congress  into  this  Union.  .  .  .  IV, 
3,  (1). 

The  Congress,  whenever  two  thirds  of  both  houses  shall  deem  it  necessary, 
shall  propose  amendments  to  this  Constitution,  or,  on  the  application  of  the 


CHAP.    Ill]        DIVISION    OF    NATIONAL   AND    STATE   POWER  111 

legislatures  of  two  thirds  of  the  several  States,  shall  call  a  convention  for  pro- 
posing amendments.  ...    V. 

.  .  .  But  Congress  may,  by  a  vote  of  two  thirds  of   each    house,  remove 
such  disability.     Amendment  XIV,  3, 


POWERS  GRANTED  TO  THE   UNITED   STATES   SIMPLY 

...  in  order  to  form  a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defense,  promote  the  general  welfare,  .  .  . 
do  ordain  and  establish  this  Constitution  for  the  United  States  of  America. 
(Preamble.) 

.  .  .  direct  taxes  shall  be  apportioned  among  the  several  States  which  may 
be  included  within  this  Union,  according  to  their  respective  numbers.  ...  I, 
2,  (3). 

The  Vice-President  of  the  United  States  shall  be  President  of  the  Senate. 
...     I.  3,  (4). 

.  .  .  the  Congress  may  at  any  time  by  law  make  or  alter  such  regulations 
[elections  for  Senators  and  Representatives].    I,  4,  (1), 

The  Senators  and  Representatives  shall  receive  a  compensation  for  their 
services,  to  be  ascertained  by  law  and  paid  out  of  the  Treasury  of  the  United 
States.     I,  6,  (1). 

.  .  .  the  Senate  may  propose  or  concur  with  amendments  as  on  other  bills 
[bills  for  raising  revenue].     I,  7,  (1). 

The  Congress  shall  have  power  to  lay  and  collect  taxes,  .  .  .  and  excises, 
•  •  •     I'8,  d). 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and  current 
coin  of  the  United  States.     I,  8,  (6). 

To  promote  the  progress  of  science  and  useful  arts  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their  respective  writings 
and  discoveries.     I,  8,  (8). 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers,  etc.  ...     1,8,  (18).    See  in  AZ. 

The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity,  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority.  .  .  .     Ill,  2,  (1). 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for 
President  and  Vice-President  [the  general  method  of  election].  Amendment 
XII. 

Congress  shall  have  power  to  enforce  this  article  by  appropriate  legislation 
[the  article  against  slavery].    Amendment  XIII,  2. 

The  Congress  shall  have  power  to  enforce,  by  appropriate  legislation, 
the  provisions  of  this  article  [the  Fourteenth  Amendment].  Amendment 
XIV,  5. 

The  Congress  shall  have  power  to  enforce,  by  appropriate  legislation,  the 
provisions  of  the  article  [the  Fifteenth  Amendment].    Amendment  XV,  2. 


AB 

POWERS  COMMON  TO  THE  NATION  AND  THE  STATES 

No  State  shall,  without  the  consent  of  Congress,  lay  any  imposts  or  duties 
on  imports  or  exports.  ...     I,  10,  (2). 

[or]  lay  any  duty  of  tonnage.  ...     I,  10,  (3). 


112  CONSTITUTIONAL   PRINCIPLES  [BOOK   II 

.  .  .  nor  any  State  be  formed  by  the  junction  of  two  or  more  States  or  parts 
of  States,  without  tlie  consent  of  the  Legislatures  of  the  States  concerned  as 
well  as  of  the  Congress.     IV,  3,  (1). 

Tiie  Ihiited  States  .  .  .  shall  protect  each  of  them  against  invasion  [the 
States]  and  on  ai)plication  of  the  loj:;islaturc,  or  of  the  executive  [when  the 
legislature  cannot  be  convened],  against  domestic  violence.     IV,  4. 

'1  he  Congress  ...  on  the  application  of  the  legislatures  of  two  thirds  of 
the  several  States,  shall  call  a  convention  for  proposing  amendments.     V. 


POWERS   RESERVED   IN   THE   STATES    (SIMPLY). 

.  .  .  each  State  shall  have  at  least  one  Representative.     I,  2,  (3). 

[A  State  may  lay  imposts  or  duties]  absolutely  necessary  for  executing  its 
inspection  laws.     I,  10,  (2). 

A  person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on  demand  of  tlie 
executive  authority  of  the  State  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime.     IV,  2,  (2). 

[House  shall  vote,  by  States,  for  President,  in  case  of  no  electoral  majority, 
from  the  three  liighest  on  the  list,  each  State  having  one  vote].  Amendment 
XII. 

BX 

STATE  POWERS  FORBIDDEN  TO  THE  UNITED  STATES 

The  House  of  Representatives  shall  be  composed  of  members  chosen  .  .  . 
by  the  people  of  the  several  States.     I,  2,  (1). 

When  vacancies  happen  in  the  representation  from  any  State,  the  executive 
authority  thereof  shall  issue  writs  of  election  to  fill  such  vacancies.     I,  2,  (4). 

The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State,  chosen  by  the  Legislature  thereof,  for  six  years,  and  each  Senator 
shall  have  one  vote.     I,  3,  (1). 

...  if  vacancies  happen  by  resignation  or  otherwise  during  the  recess  of 
the  Legislature  of  any  State,  the  executive  thereof  may  make  temporary  ap- 
pointments until  the  next  meeting  of  the  legislature,  which  shall  then  fill  such 
vacancies  [in  the  Senate].     I,  3,  (2). 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Repre- 
sentatives shall  be  prescribed  in  each  State  by  the  Legislature  thereof ;  but  the 
Congress  may  at  any  time  by  law  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  Senators.    I,  4,  (1). 

.  .  .  reserving  to  the  States  respectively  the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia  according  to  the  discipline  prescribed 
by  Congress.     I,  8,  (16). 

The  migration  or  importation  of  such  persons  (slaves)  .  .  .  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight  hundred  and 
eight.  ...     I,  9,  (1). 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may 
direct,  a  number  of  electors,  equal  to  the  whole  number  of  Senators  and  Rep- 
resentatives to  which  the  State  may  be  entitled  in  the  Congress.  ...  II, 
1,  (2). 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respectively.  .  .  .  Amend- 
ment X. 


CHAP.    Ill]        DIVISION    OF   NATIONAL   AND    STATE    POWER  113 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
State.     Amendment  XI. 

Representatives  shall  be  apportioned  among  the  several  States  according  to 
their  respective  numbers,  counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  .  .  .    Amendment  XIV,  2. 


POWERS   FORBIDDEN  TO  THE   UNITED   STATES  SIMPLY 

Representatives  and  direct  taxes  shall  be  apportioned  among  the  several 
States  according  to  their  respective  nmnbers  .  .  .  excluding  Indians  not  taxed. 
...     I,  2,  (3). 

prhe  Senators]  .  ,  .  shall  be  divided  as  equally  as  may  be  into  three  classes 
...     I,  3,  (2). 

The  .  .  .  President  of  the  Senate  .  .  .  shall  have  no  vote,  unless  they  be 
equally  divided.    I,  3,    (4). 

[The  Senate  when  sitting  to  try  impeachments  shall]  be  on  oath  or  affirma- 
tion. When  the  President  of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside :  and  no  person  shall  be  convicted  without  the  concurrence  of  two- 
tliirds  of  the  members  present.     I,  3,    (6). 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to  removal 
from  office,  and  disqualification  to  hold  and  enjoy  any  office  of  honor,  trust, 
or  profit  under  the  United  States.   ...     I,  3,  (7). 

[The  meeting  of  Congress]  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day.    I,  4,  (2). 

Neither  house,  during  the  session  of  Congress,  sliall,  without  the  consent  of 
the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting.    I,  5,  (4). 

No  Senator  or  Representative  shall,  during  the  time  for  wliich  he  was  elected, 
be  appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall  have  been  increased 
during  such  time.  ...     I,  6,  (2). 

All  bills  for  raising  revenue  shall  originate  in  the  House  of  Representatives. 
...     I,  7,  (1). 

(Vetoed  bills)  .  .  .  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  persons  voting  for  and  against  the  bill  shall  be 
entered  on  the  journal  of  each  house  respectively.  If  any  bill  shall  not  be 
returned  by  the  President  \vitliin  ten  days  (Sundays  excepted)  after  it  shall 
have  been  presented  to  him,  the  same  shall  be  a  law,  in  Uke  manner  as  if  he  had 
signed  it,  unless  the  Congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law.    I,  7,  (2). 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary  (except  on  a  question  of  adjourn- 
ment) shall  be  presented  to  the  President  of  the  United  States ;  and  before  the 
same  shall  take  effect,  shall  be  approved  by  him  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill.    I,  7,  (3). 

...  all  duties,  imposts  and  excises  shall  be  uniform  throughout  the  United 
States.     1,  8,  (1). 

...  no  appropriation  of  money  [to  raise  and  support  armies]  .  .  .  shall  be 
for  a  longer  term  than  two  years.     I,  8,  (12). 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when 
in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it.     I,  9,  (2). 

8 


11-4  CONSTITUTIONAL   PRINCIPLES  [BOOK   II 

No  bill  of  attainder  or  ex  post  facto  law  sliall  be  passed.    I,  9,  (3). 
-No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  proportion  to  the 
census  or  enumeration  iiereinljefore  dircc^ted  to  be  taken.     I,  9,  (4). 

No  tax  or  duty  siiall  be  laitl  on  articles  exported  from  any  State.     I,  9,  (5). 

No  preference  siiall  be  given  by  any  regulation  of  commerce  or  revetme  to 
the  ports  of  one  State  over  tliose  of  another ;  nor  shall  vessels  bound  to  or  from 
one  State  be  obliged  to  enter,  clear,  or  pay  duties  in  another.     I,  9,  (G). 

No  money  shall  be  drawn  from  tlie  Treasury  but  in  consecjuence  of  appro- 
priations made  by  law.    ...     I,  9,  (7). 

No  title  of  nobility  siiall  be  granted  by  the  United  States;  and  no  person 
holding  any  office  of  profit  or  trust  under  them  shall,  witliout  the  consent  of 
Congress,  accept  of  any  present,  emolument,  office,  or  title,  of  any  kind  whatever, 
from  any  king,  prince,  or  foreign  State.    I,  9,  (8). 

.  .  .  The  judges,  botii  of  the  supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behavior.  .  .  .     (See  also  in  Y.)     Ill,  1. 

[The  trial  of  crimes]  .  .  .  not  committed  within  any  State  .  .  .  shall  be 
at   such   place   or  places  as  the  Congress  may  by  law  have  directed.     Ill, 

2,  (3). 

Treason  against  the  United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.   ...    Ill, 

3,  (1). 

...  no  attainder  of  treason  shall  work  corruption  of  blood,  etc.    Ill,  3,  (2). 

...  no  State,  without  its  consent,  shall  be  deprived  of  its  equal  suffrage  in 
the  Senate.    V. 

All  debts  contracted  and  engagements  entered  into,  before  the  adoption 
of  this  Constitution,  shall  be  as  vaUd  against  the  United  States  under  tliis  Consti- 
tution as  under  the  confederation.     VI,  1. 

...  no  religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States.     (See  also  in  Y.)    VI,  3. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof ;  or  abridging  the  freedom  of  speech  or  of  the 
press.   .   .   .   Amendment  I.     (See  also  under  Y.) 

.  .  .  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 
(See  under  Y.)    Amendment  II. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the 
consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by 
law.     (See  under  Y.)    Amendment  III. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue  but  upon  probable  cause,  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be  searched,  and  the  person  or 
things  to  be  seized.    Amendment  IV. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger ;  nor  shall  any  person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation.      Amendment  V. 

[Trial  by  jury  of  the  vicinage.  Witnesses,  evidence,  etc.]  (See  under  Y.) 
Amendment  VI. 

[Trial  by  jury  in  civil  cases.]     (See  under  Y.)    Amendment  VII. 

[Bail,  fines,  punishments.]     (See  under  Y.)    Amendment  VIII. 

[Powers  not  delegated  to  the  United  States  forbidden.]  (See  under  BX.) 
Amendment  X. 

The  validity  of  the  public  debt  of  the  United  States,  authorized  by  law, 


CHAP.    Ill]       DIVISION   OF    NATIONAL   AND    STATE   POWER  115 

including  debts  incurred  for  payment  of  pensions  and  bounties  for  ser\nces  in 
suppressing  insurrection  or  rebellion,  shall  not  be  questioned.  .  ,  .  Amend- 
ment XIV,  4 


POWERS   FORBIDDEN   TO  THE   STATES  SIMPLY 

No  State  shall  enter  into  any  treaty,  alliance,  or  confederation ;  grant  letters 
of  marque  and  reprisal ;  coin  money ;  emit  bills  of  credit ;  make  anytliing  but 
gold  and  silver  coin  a  tender  in  payment  of  debts;  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant  any 
title  of  nobihty.     I,  10,  (1). 

No  State  shall  .  .  .  lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection  laws.  .  .  . 
(See  also  under  AB.)    I,  10,  (2). 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agreement  or  com- 
pact with  another  State  or  \\ith  a  foreign  power,  or  engage  in  war,  unless  actu- 
ally invaded  or  in  such  imminent  danger  as  will  not  admit  of  delay.    I,  10,  (3). 

...  no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an  elector.     II,  1,  (2). 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State.  .  .   .     IV,  1. 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  States.    IV,  2,  (1). 

Fugitive  slave  provision,  [obsolete^    IV,  2,  (3). 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  pri\dleges 
or  immunities  of  citizens  of  the  United  States ;  nor  shall  any  State  deprive  any 
person  of  Ufe,  liberty  or  property,  without  due  process  of  law;  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws.  Amendment 
XIV,  1. 

.  .  .  when  the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  .  .  .  ,  Representatives  in  Congress,  the  executive 
and  judicial  officers  of  a  State,  or  the  members  of  the  legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion,  or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  [in  proportion].     Amendment  XIV,  2. 

No  person  shall  be  a  Senator  or  Representative  ...  or  elector  ...  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath  ...  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or  rebeUion  against  the  same, 
or  given  aid  or  comfort  to  the  enemies  thereof.   .   .   .    Amendment  XIV,  3. 


ZX 

POWERS  EXPRESSLY   FORBIDDEN  TO   BOTH  THE  NATION 
AND  THE   STATES 

.  .  .  the  electors  in  each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  legislature.     I,  2  (1). 

.  .  .  The  number  of  Representatives  shall  not  exceed  one  for  every  thirty 
thousand.  ...     I,  2,  (3). 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of 


116  CONSTITUTIONAL   I'RINCirLES  [BOOK    II 

twenty-five  years,  and  been  seven  years  a  citizen  of  the  United  States.  .  .  . 
1,  13,  (•-'). 

The  8enateof  the  United  States  shall  be  composed  of  two  Senators  from  each 
State,  chosen  by  the  legislature  thereof,  for  six  years.    ...     I,  3  (1). 

No  person  shall  be  a  Senator  wlio  sliall  not  have  attained  the  age  of  thirty 
years,  and  been  nine  years  a  citizen  of  the  United  States.   ...     I,  ',i,  (3). 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty 
years  .  .  .  and  who  shall  not,  when  elected,  be  an  inliabitanl  of  that  State  for 
which  he  shall  be  ciioscn.     I,  3  (3). 

[Senators  and  KepresentativesJ  shall,  in  all  cases  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during  tiieir  attendance  at  the 
session  of  their  respective  houses,  and  in  going  to  and  returning  from  tiie  same; 
and  for  any  speech  or  debate  in  either  house  they  shall  not  be  questioned  in 
any  other  place.     I,  G,  (1). 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State.  (See  also 
1,10,(2).)      1,9,(5). 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United  States 
at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to  the  office 
of  President ;  neither  shall  any  person  be  eligible  to  that  office  who  shall  not 
have  attained  to  the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident 
within  the  United  States.     II,  1,  (5). 

...  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any 
other  State.  ...     IV,  3,  (1). 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican 
form  of  government.   .  .  .    IV,  4. 

This  Constitution,  and  the  laws  of  the  United  States  which  sliall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  tlie  supreme  law  of  the  land  ;  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.    VI,  2. 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall  exist  within  the  United 
States  or  any  place  subject  to  tlieir  jurisdiction.    Amendment  XIII,  1. 

.  .  .  neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave  ;  but  all  such  debts, 
obligations,  and  claims  shall  be  held  illegal  and  void.    Amendment  XIV,  4. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude.     Amendment  XV,  I. 


RIGHTS  RESERVED   OR   EXPRESSLY   RETAINED   IN 
THE   PEOPLE 

We,  the  people  of  the  United  States,  in  order  to  .  .  .  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity  ...  do  ordain  and  establish  this  Con- 
stitution for  the  United  States  of  America.     Preamble. 

All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  [separa- 
tion of  powers].    .    .    .    (See  also  II,  1 ;    III,  1.)    I,  1. 

The  House  of  Representatives  shall  be  .  .  .  chosen  ...  by  the  people  of 
the  several  States.  ...     I,  2,  (1). 

[Every  Senator  or  Representative  must  be]  an  inhabitant  of  that  State  in 
which  he  shall  be  chosen.     I,  2,  (2) ;   I,  3,  (3). 

.   .   .   each  State  shall  have  at  least  one  Representative.   ...    I,  2,  (3). 


Cir.VP.    Ill]        DIVISION    OF    NATIONAL    AND    STATE    lOWKR  117 

[Persons  impeached]  shall  nevertheless  be  liable  and  subject  to  indictment, 
trial,  judgment,  and  punishment,  according  to  law.     I,  3,  (7). 

The  Congress  shall  assemble  at  least  once  in  every  year.  ...     I,  4,  (2). 

[Privilege  of  Senators  from  arrest,  etc.]     (See  under  XZ.)    I,  G,  (1). 

...  no  person  hoUiing  any  office  under  the  United  States  shall  be  a  member 
of  either  house  during  liis  continuance  in  ofhce.     I,  6,  (2). 

All  bills  for  raising  revenue  shall  originate  in  the  House  of  Representatives. 
...     I,  7,  (1). 

...  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the  United 
States.     I,  8,  (1). 

...  no  appropriation  of  money  ...  [to  raise  and  support  armies]  shall 
be  for  a  longer  term  than  two  years.     I,  8,  (12). 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when 
in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it.     I,  9,  (2). 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed.     I,  9,  (3). 

[No  direct  Federal  taxation].     I,  9,  (4). 

No  money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appro- 
priations made  by  law ;  and  a  regular  statement  and  accovmt  of  the  receipts 
and  expenditures  of  all  public  moneys  shall  be  published  from  time  to  time. 
I,  9,  (7). 

No  title  of  nobiUty  shall  be  granted  by  the  United  States.    ...    I,  9,  (8). 

(The  President)  before  he  enter  on  the  execution  of  his  office  .  .  .  shall  take 
.  .  .  oath  to  .  .  .  preserve,  protect,  and  defend  the  Constitution  of  the  United 
States.     II,  1,  (8). 

The  President,  Vice-President,  and  all  civil  officers  .  .  .  shall  be  removed 
from  office  on  impeachment  for  and  conviction  of  treason,  bribery,  or  other  high 
crimes  and  misdemeanors.     II,  4. 

The  judges,  both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive  for  their  services  a 
compensation  which  shall  not  be  diminished  during  their  continuance  in  office. 
Ill,  1. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury ;  and 
such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have  been  com- 
mitted. .  .  .     Ill,  2,  (3). 

.  .  .  No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open  court  .  .  .  but  no  at- 
tainder of  treason  shall  work  corruption  of  blood  or  forfeiture  except  during  the 
life  of  the  person  attainted.     Ill,  3. 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  States.     IV,  2,  (1). 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  repubUcan 
form  of  government.    .    .    .     IV,  4. 

[Amendments  to  this  Constitution  shall  be  valid]  when  ratified  by  the  legis- 
latures of  three  fourths  of  the  several  States,  or  by  conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 
Congress.  ...     V. 

.  .  .  the  judges  in  every  State  shall  be  bound  thereby  [this  Constitution] 
anything  in  the  Constitution  or  laws  of  any  State  to  the  contrary  notwithstand- 
ing.     VI,  2. 

The  Senators  and  Representatives  .  .  .  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  States,  shall  be  bound  by  oath  .  .  . 
to  support  this  Constitution ;  but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United  States.    VI,  3. 

Congress  shall  make  no  law  [respecting  religion  —  see  in  X]  or  abridging 
freedom  of  speech  or  of  the  press ;  or  the  right  of  the  people  peaceably  to  as- 
semble and  to  petition  the  government  for  a  redress  of  grievances.  Amend- 
ment I. 


118  CONSTITUTIONAL   PRINCIPLES  [bOOK    II 

A  well-rejiiilated  militia  boinp  norossary  to  the  Kcriirity  of  a  free  State, 
the  right  of  the  people  to  ia-ep  aiul  l)car  arms  shall  not  be  infringed.  Amend- 
ment II. 

No  soldier  shall,  in  time  of  j)eare,  he  (luartered  in  any  hou.se  without  the 
consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by 
law.     Amendment  III. 

The  riglit  of  the  people  to  be  secure  in  tlicir  persons,  houses,  papers,  and 
effects,  against  unreasonal)le  searciies  ami  seizures,  .shall  not  be  violated,  and 
no  warrants  shall  issue  but  upon  {)robable  cause,  supported  by  oath  or  aflirma- 
tion,  and  particularly  describing  the  place  to  be  searched,  and  the  person  or 
things  to  be  .seized.     Amendment  IV. 

No  person  .sliall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  ca.ses  arising 
in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual  .service  in  time  of 
war  or  public  danger;  nor  .shall  any  penson  be  subject  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life  or  limb ;  nor  .shall  be  compelled  in  any  criminal 
case  to  be  a  witness  again.st  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation.    Amendment  V. 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  .speedy  and 
public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusation; 
to  be  confronted  with  the  witnesses  against  him ;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  assi-stance  of  coun.sel  for 
his  defense.     Amendment  VI. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law.     Amendment  VII. 

Exce.s.sive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted.     Amendment  VIII. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people.    Amendment  IX. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respectively  or  to  the  peo- 
ple.    Amendment  X. 

[President  elected  by  electors  chosen  as  the  State  legislatures  may  direct, 
but  in  fact  by  the  people].     Amendment  XII. 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  sliall  have  been  duly  convicted,  shall  exist  within  the  United 
States  or  any  place  subject  to  their  jurisdiction.    Amendment  XIII,  1. 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States  ;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  w-ithout  due  process  of  law ;  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws.  Amend- 
ment XIV,  1. 


BOOK   III 

THE   STATE   CONSTITUTIONS 
DIGESTED,   ANNOTATED,    AND   COMPARED 

WITH    THE 

FEDERAL   CONSTITUTION 


THE  STATE  CONSTITUTIONS 


Section  1.  Explanatory  preface.  Of  the  contents  of  the 
various  State  Constitutions,  a  threefold  division  may  roughly  be 
made;  they  usually  contain,  first,  the  Declaration  of  Rights; 
second,  the  political  constitution  and  organization  of  the  State; 
and  third,  very  varied  and  miscellaneous  restrictions  and  injunc- 
tions concerning  legislation.  I  have  attempted  to  incorporate 
herein  the  entire  Constitution  of  every  State,  excepting  only 
minute  and  detailed  provisions,  not  of  general  interest,  concerning 
minor  administrative  offices,  courts,  and  municipal  government. 
Where  the  wording  in  the  several  States  is  not  identical,  I  have 
been  careful  to  give  the  various  forms  when  there  is  any  possibility 
of  a  difference  of  meaning  or  legal  effect. 

This  third  part  has  grown  out  of  all  proportion  to  the  others ;  in 
fact,  in  the  newer  Constitutions,  particularly  in  the  West,  it  far  ex- 
ceeds the  other  two  in  bulk  and  contains  such  a  code  of  directions 
or  inhibitions  as  to  leave  very  little  real  legislative  power  to  the 
Legislature.  The  Louisiana  Constitution,  for  instance,  contains  one 
hundred  and  forty-four  pages !  But  still  more  notable  is  that  of 
Alabama,  covering  sixty-nine  pages  of  fine  print,  and  those  of  the 
eight  new  far  Western  States.  Even  in  States  which  do  not  adopt 
the  initiative  and  referendum,  as  some  of  these  W^estern  States  do, 
the  adoption  of  such  an  elaborate  Constitution  is  practically  direct 
legislation,  "Legislation  by  the  people."  Naturally,  there  is  a  tend- 
ency in  such  cases  to  more  frequent  amendment ;  necessarily  so  when 
the  Constitution,  instead  of  embodying  a  few  great  principles  and 
the  broad  framework  of  the  State  government,  attempts  to  pre- 
scribe infinite  details  of  legislation  and  of  administrative  machinery. 
Historically,  and  from  the  point  of  view  of  a  Constitutional  law}^er, 
such  Constitutions  are  entirely  unscientific.  The  late  Governor 
Russell  of  Massachusetts,  in  his  address  before  the  Yale  Law 
School,  well  pointed  out  the  objections  of  putting  such  a  mass  of 


122  THE    STATE    CONSTITUTIONS  [BOOK   III 

things  into  tlic  Constitution,  both  as  (lcj)riviiig  tlio  1  jogislature  of 
all  sense  of  responsibility,  and  as  (liscrediting  the  Constitution  itself. 
Such  a  vast  mass  of  directions  cnilxxlying  merely  the  temporary 
desires  of  a  present  majority,  when  either  necessity  or  popular 
opinion  requires  a  change,  involves  a  necessity  of  such  continual 
amendment  and  frequent  alteration  as  to  bring  a  written  Consti- 
tution into  contempt. 

It  must  be  borne  in  mind  that  this  is  a  comparative  digest  of 
constitutional  provisions  only;  it  does  not  follow,  of  course,  that 
there  may  not  be  in  the  several  States  statutes  on  the  same  subject. 

All  the  forty-six  States  have  Constitutions ;  not  so  the  Territories, 
or  the  District  of  Columbia.  Arizona,  however,  has  a  "Bill  of 
Rights,"  though  it  has  naturally  no  greater  sanction  than  an  ordi- 
nary territorial  statute.  In  a  few  cases  I  have  noted  similar  pro- 
visions in  the  United  States  laws  which  restrict  the  legislation  of 
New  Mexico  and  Arizona.  References  are  also  made  in  the  Bill 
of  Rights  to  the  provisions  of  the  United  States  Constitution  or  of 
the  English  and  American  constitutional  documents  on  which  such 
articles  are  founded;  and  the  principles  are  fully  discussed  in  the 
notes,  and  elsewhere. 

It  may  generally  be  said  that  the  Constitutions  of  the  Western 
States  are  more  elaborate,  more  cumbrous,  and  more  frequently 
amended  than  those  of  the  Eastern.  One  reason  for  this  is,  that 
in  the  West  the  State  Constitution  is  frequently  made  the  instru- 
ment for  enacting  laws  which  are  in  most  States  unconstitutional; 
another,  that  in  the  West  many  things  are  put  in  the  Constitution 
which  are  elsewhere  left  to  the  Legislature.  The  constitutional 
provisions  are,  of  course,  much  more  stable  than  ordinary  laws. 
Nevertheless,  the  practice  is,  as  has  been  said,  an  objectionable  one. 

For  the  date  of  the  latest  State  Constitutions  and  where  they  may 
be  found,  see  the  Table  of  Citations.  States  are  cited  in  alphabeti- 
cal order,  and  the  words  "  Article  "  or  "  Section  "  are  left  out.  That 
is  to  say,  1,  14,  would  be  Article  1,  Section  14,  or  whatever  other 
division  is  used  in  the  Constitution  in  question.  If  there  is  no 
citation,  refer  to  the  one  of  the  same  State  last  preceding.  Many 
of  the  States,  however,  have  the  articles  of  the  Constitution  num- 
bered continuously.  The  asterisk  sign  is  used  in  the  rare  in- 
stances where,  to  complete  the  subject,  a  statute  is  cited. 

Since  the  first  edition  of  this  part,  published  as  the  first  part  of 
Volume  I.  of  "American  Statute  Law,"  in  1886,  no  less  than  eighteen 


BOOK   III]  THE    STATE    CONSTITUTIONS    '  123 

new  State  Constitutions  have  been  adopted,  counting  Oklahoma. 
Of  these,  eight  are  of  new  Western  States,  but  the  other  ten  are 
new  Constitutions  adopted  in  the  Eastern  or  Southern  States.  It  is 
notable  that  none  of  the  States  of  the  middle  West  or  New  England, 
with  the  exception  of  New  Hampshire,  have  adopted  new  Constitu- 
tions during  this  period  of  twenty  years.  The  industry  of  constitution 
making  is  confined  to  the  more  radical  States,  or  to  those  which  have 
the  greatest  distrust  of  their  legislators.  My  thanks  are  due  to 
Mr.  Robert  H.  Whitten  of  the  New  York  State  Library  for  a  com- 
plete table  of  constitutional  amendments  adopted  in  the  last  twenty 
years.  Owing  to  the  negligence  or  stupidity  of  the  State  author- 
ities in  not  printing  these  with  the  annual  laws,  this  is  a  difficult 
matter  to  ascertain.  In  Oregon,  indeed,  where  laws  and  constitu- 
tional amendments  are  adopted  by  initiative,  the  Secretary  of  State 
complains  that  they  are  "full  of  bad  spelling,  punctuation,  omis- 
sions, and  repeated  words ! "  It  appears,  however,  that  only  two 
states  —  Tennessee  and  Wyoming  —  failed  to  amend  their  Consti- 
tutions in  the  last  twenty  years,  while  California  did  so  forty-two 
times ! 

§  2.  Interpretation  of  the  State  Constitutions.  —  In  some  of  the 
newer  Constitutions  we  find  the  provision  that  the  Constitution  itself 
is  mandatory  and  prohibitory,  except  where  otherwise  declared  by 
express  words.  ^ 

^  Cal.  1,  22;  Mon.  3,  29;  N.  D.  21;  would  seem  to  be,  if  the  Constitution 
S.  C.  1,  29;  Utah  1,  26;  Wash.  1,  29.  defines  Trusts  or  declares  the  law  in 
In  other  States,  whether  the  Constitu-  any  way,  it  is  self -executing ;  other- 
tion  is  self-executing  is  sometimes  an  wise  if  it  merely  says  that  the  legisla- 
important  question.  It  has  been  par-  ture  shall  enact  laws  to  a  certain  effect, 
ticularly  debated  in  Kansas  and  Ohio,  If  it  do  both  —  as  has  happened  in 
where  new  constitutional  amendments  several  States  —  we  are  in  a  quandary. 
reUeving  corporations  and  stockholders  The  better  rule  here  would  be  valeat 
from  hability  have  not  been  followed  quantum  valere  potest.  White  (§  14), 
by  legislation  to  carry  them  into  effect;  cites  some  Pa.  cases  where  it  was  held 
and  in  States  whose  constitutions  have  directory  merely, 
articles  against  Trusts,  etc.     The  rule 


124  THK   STATK    CONSTITUTIONS  [BOOK    III 


Paet  I 

BILL   OF    RIGHTS 

§  3.  Note  io  Part  I.  —  The  Bill  of  Rights  of  the  English  Statute  ' 
has  been  largely  adopted  in  the  States  of  the  Union,  somewhat  modi- 
fied and  largely  amplified  by  the  addition  of  new  provisions  of  a 
similar  nature,  founded  on  Magna  Carta,  the  Declaration  of 
Independence  and  the  Constitution  of  the  United  States,  old 
Province  charters,  and  the  "\^irginia  and  IMassachusetts  bills  of 
rights. 

§  4.  Bill  of  Rights  Irrepcalahlc.-  —  Ten  States  declare  that  "to 
guard  against  transgression  of  the  high  powers  delegated  to  the 
Legislature  by  the  Constitution,  everything  in  the  Bill  of  Rights  is 
declared  to  be  excepted  out  of  the  general  powers  of  Government, 
and  shall  forever  remain  inviolate;  and  all  laws  contrary  to  the 
Bill  of  Rights  are  void."  ^  Meaning  of  course  constitutions  as  well 
as  statutes,  —  a  striking  attempt  to  bind  posterity. 

"When  men  enter  into  a  state  nf  society  they  surrender  up  some 
of  their  natural  rights  to  that  society  in  order  to  insure  the  protec- 

*  1  W.  &  M.  Sess.  2.     This  declara-  terity    would    not,    however,    sur\'ive 

tion  of  rights,  however,  represents  but  omission  in  a  new  State  Constitution, 

principles  old  as  Anglo-Saxon  freedom,  A    precedent    of  such    attempt    may, 

rewon  from  Norman   or  Stuart   kings  however,  be  found  in  England,  where 

and  thus  finally  codified  in  the  Revolu-  in  1495  an  act  for  the  security  of   a 

tion  of  1689.     Magna  Carta,  won  in  like  subject  serving  a  de  facto  king  declared 

manner  from  John,  was  not  superseded  "  Every    Act    made   contrary   to   this 

by  it;  in  theory  it  had  always  been  in  statute  shall  be  void  and  of  no  effect." 

force.    The  Declaration  represents  only  (Taswell-Langmead,  p.  295.) 

additions,  or,  more  correctly,  precisions,  So  in  Arizona  "the  Bill  of  Rights  is 

of  the  old  principles.     In  outward  form  the  supreme  law  of  the  land,  subject 

the  Constitution  under  Edward  I.  be-  only  to  the  United  States  Constitution 

came  essentially  the  same  as  in  the  and  laws.     And  it  cannot  be  amended 

present    day.      (Taylor,    I.    424.     See  or  altered  but  by  the  concurrence  of  a 

notes  to  §§  10,  70,  130.)  majority   of   all   the   members   elected 

2  Compare   U.    S.   C.   Amts.   9,    10.  to  the  Legislature,  the  vote  to  be  taken 

Decl.  Ind.  §  2.  by    yeas    and    nays    entered    on    the 

^  Ala.  1,36;  Ark.  2,  29;  Del.  Art.  1,  journal."     B.    Rts.    32.     Neither    can 

ad  fin.  ;  Ky.  26  ;  N.  D.  24  ;  N.  M.*  any  other  law ! 

1851,  July  12,  §  20;    Pa.  1,  26:    R.  L  A  Bill  of  Rights  is  still  necessary 

Preamble;  Tenn.   11,   16;  Tex.   1,  29;  (R.  Wliite,  p.  31). 
Va.  1,  17.     This  attempt  to  bind  pos- 


PART   I J  BILL   OF   EIGHTS  125 

tion  of  others;  and  without  such  an  agreement  the  surrender  is 
void."  ' 

In  other  States  also  the  social  compact  is  recognized.  Thus,  the 
Constitutions  of  five  States  declare  that  some  rights  cannot  be 
surrendered  by  men  when  they  enter  into  a  state  of  society,  but  are 
inalienable,  because  no  equivalent  can  be  given  for  them.^  As,  for 
example,  rights  of  conscience,^   and  other  natural  rights.  "* 

This  social  compact  notion  hardly  appears  in  the  Federal  Consti- 
tution except,  possibly,  by  inference,  in  the  Tenth  Amendment. 
This  says  that  "The  powers  not  delegated  to  the  United  States  .  .  . 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively  or  to  the  people."  But  the  second  para- 
graph of  the  Declaration  of  Independence  states  that  "All  men  arc 
.  .  .  endowed  by  their  creator  with  certain  inalienable  rights.  .  .  . 
That  to  secure  these  rights  governments  are  instituted. "...  This, 
and  not  Rousseau  directly,  is  doubtless  the  prototype  of  the  State 
provisions. 

§  5.  Construction  of  Bill  of  Rights.  —  By  the  Constitutions  of 
most  States  it  is  declared  that  this  enumeration  of  rights  shall  not 
be  construed  to  impair  or  deny  others  retained  by  the  people.^ 

This  section  is,  of  course,  founded  on  the  Ninth  Amendment  to 
the  Federal  Constitution,  the  wording  being  almost  identical, 
though  the  phrase  "deny  or  disparage"  is  used  instead  of  "im- 
pair or  deny." 

And  in  many  States  the  Constitution  declares  that  a  frequent 
recurrence  to  fundamental  principles  is  necessary  to  preserve  the 
blessings  of  liberty.® 

>  N.  H.  1,  3.     See  also  §  182.  1,  25;    Va.  1,  17;    Wash.   1,  30;  Wy. 

2  N.  H.  1,  4;   Va.  1,  1;  W.  Va.  3,  1.    1,  36. 

Ala.  1,  1.  *  m.  2,  20;  Mass.  1,  18;  N.  C.  1,  29; 

3  N.  H.  1,  4.  N.  H.    1,  38;   S.  D.  6,  27;   Utah  1,  27; 

*  (See  also  §§  12,  13,  14,  15),  Va.,  Va.  1,  15;  Vt.  1,  18;  Wash.  1,  32; 
W.  Va.  W.  Va.  3,  20;  Wis.  1,  22.    This  refer- 

*  Ala.  1,  36;  Ark.  2,  29;  Cal.  1,  23;  ence  to  fundamental  principles  is 
Col.  2,  28;  Fla.  Decln.  Rts.  24;  Ga.  made  in  several,  both  of  older  and  of 
1,  5,  2;  Ida.  1,  21;  1,  25;  lo.  1,  25;  the  newer,  State  Constitutions,  and 
Kan.  B.  Rts.  20;  La.  15;  Me.  1,  24;  always  in  a  more  or  less  general 
Md.  Decln.  Rts.  45;  Minn.  1,  16;  Miss,  phrase.  Thus  in  Idaho  (3,  24)  "Sobri- 
1,32;  Mo.  2,  32;  Mon.  3,  30;  Neb.  1,  ety,  morality  and  the  purity  of  the 
20;  Nev.  1,  20;  N.  C.  1,37;  N.  D.  24;  home  "are  the  words  used.  In  Wyom- 
N.  J.  1,21;  0.1,20;  Okla.  2,  33;  Ore.  ing  (7,  20)  "Health  and  morality." 
1,33;  R.  I.  1,  23;  S.  C.  1,  41;    Utah  It  has  not  seemed  necessary  to  print 

these  phrases  in  full. 


12G  TIIK   STATE   CONSTITUTIONS  [liOOK   III 

§  G.  Indloulual  llijltls.  —  It  is  (leclaivd  that  the  object  ol"  gov- 
ernment is  to  protect  aiul  maintain  individual  rights,  in  the  Con- 
stitution of  Washington,  and  in  hoth  Washington  and  Utah  it  is 
declared  that  a  frecjucnt  ret  urrence  to  fundamental  prineij)les,  etc., 
is  "essential  to  the  security  of  individual  right."  '  Tliis  definite 
recognition  of  the  claims  of  the  individual  against  socialistic  gov- 
ernment is  a  decided  novelty,  though  a  Federal  judge  in  Texas  has 
refused  to  naturalize  a  socialist  on  the  ground  that  his  doctrine  was 
not  compatible  with  the  Federal  Constitution.-  In  Oklahoma,  on 
the  other  hand,  "the  right  of  the  State  to  engage  in  any  occupa- 
tion or  business  for  public  purposes  shall  not  be  denied  or  pro- 
hibited, except  that  the  State  shall  not  engage  in  agriculture  for  any 
other  than  educational  and  scientific  purposes  and  for  the  support 
of  its  penal,  charitable,  and  educational  histitutions. "  ^  The  ques- 
tion whether  a  State  could  under  the  Federal  Constitution  was 
debated,  but  not  decided,  in  the  South  Carolina  liquor  case  ;  *  and 
municipal  coalyards,  etc.,  have  usually  but  not  always  been  held 
unconstitutional  under  State  constitutions.^ 

1  See  last  note  for  citations.  *  199  U.  S.  437. 

^  Ex  parte  Sauer,  81  Fed.  Rep.  355.         *  Opinion  of  Justices,  182  Mass.  605. 

3  Okla.  2,  31. 


PART   l]  BILL  OF  RIGHTS:    CIVIL  127 


CHAPTER   I 

BILL   OF  RIGHTS:    CIVIL 

Note.  This  division  of  the  Bill  of  Rights  into  civil  and  criminal 
is  purely  one  of  convenience,  and  has  no  precedent,  either  in  the 
statute  of  William  and  Mary  or  in  the  various  State  Constitutions, 
where  those  rights  which  we  have  termed  civil  and  those  which 
relate  to  criminal  proceedings  are  often  treated  in  the  same  para- 
graph, as,  notably,  the  great  clause  39  Magna  Carta.     See  §  130. 

Article  1.     Natural  Rights 

§  10.  Freedom.^  —  The  Constitutions  of  many  States  have  a 
provision  that  men  are  free. 

Thus,  that  all  men  are  born  free  and  independent ;  ^  that  they  are 
by  nature  free  and  independent ;  ^  that  they  are  equally  free  and 
independent ;  *  that  they  are  born  equally  free  and  independent ;  ^ 
that  they  are  by  nature  equally  free  and  independent.^ 

"The  inhabitants  of  this  State  are  not  controllable  by  any  other 
laws  than  those  to  which  they  or  their  representative  body  have 
given  their  consent."  ^ 

*  Compare  also  §§  12,  30.   The  great  000    registered    population.       Villeins 

principles   of   freedom,   both  of   body  were  free  men  as  the  word  is  used  in 

and  of  labor  or  trade,  antedate  Magna  Magna  Carta.    Wat  Tyler  led   100,000 

Carta  itself;   a  month  before  Runny-  villeins  in  1381,  but  by   1530   villein- 

mede,  John  granted  to  the  baronies  of  age  had  disappeared   (Taylor,   I.   510. 

London  the  right  to  elect  their  Mayor;  "By  nature  equally  free  and  indepen- 

and  the  right  to  hberty  is  implied  in  dent "  is  the  phrase  in  the  Virginia  Bill 

several  provisions  of  the  Magna  Carta  of  Rights.     It   is  not   in   the   Federal 

of  John   ("The  City  of  London  shall  Constitution.     Compare  §§  130,  183. 
have  all  its  ancient  liberties  and  free         -  Mass.  1,  1;   S.  C.  1,  1. 
customs  as  well  by  land  as  by  water:         ^  Cal.  1,  1;   Fla.  Decln.  Rts.  1;   Ida. 

furthermore  we  will  and  grant  that  all  1,  1;   111.  2,  1;   lo.  1,  1;   Ky.  1;  Nev.  1, 

other  cities  and  boroughs,  and  towns  and  1;  N.  J.  1,  1;  O.  1,  1. 
forts  shall  have  all  their  liberties  and         *  Ala.  1,  1. 

free  customs."  —  Cap.  13),  but  more  ex-         *  Ark.  2,  2;    Me.   1,  1;    Mon.  3,  3; 

presslystatedinthatof  Henry  III.,  cap.  Neb.  1,  1;  N.  H.  1,  1;  Pa.  1,  1;  S.  D. 

29:    "No  man  .  .  .  shall  be   disseized  6,  1;   Vt.  1,    1;   Wis.  1,  1. 
of  his  liberties  or  free  customs,"  etc.         *  N.  D.  1;  Va.  1,  1;  W.  Va.  3,  1. 
There  were  25,000  slaves  numbered  in         ^  N.  H.  1,  12. 
the  Domesday  book  out  of  about  300,- 


128 


THE   STATE   CONSTITUTIONS 


[book   III 


So,  many  States  have  preambles  resembling  the  United  States 
Constitution   (mentioning  liberty,  justice,  etc.).' 

§  11.  Equality.-  —  The  Constitutions  of  most  States  declare  this 
principle.  Thus,  that  men  are  born  equal, ^  (and  this  seems  to  be 
implied  in  other  States);*  that  they  are  by  nature  ecpial ;  ^  that 
they  are  equal  before  the  law;"  (and  this  seems  implied  in  the 
Constitutions  of  seven  other  States);^  that  all  men  have  e(|ual 
rights  when  they  form  a  social  compact;  ^  that  "no  person  shall  be 
denied  the  equal  protection  of  the  laws  " ;  "  that  all  laws  should  be 
made  for  the  good  of  the  whole ;  and  the  burdens  of  the  State  ought 
to  be  fairly  distributed  among  its  citizens.'" 

§  12.  Life  and  Lihcrty?^  —  The  Constitutions  of  most  of  the 
States  declare  that  all  men  have  a  natural,  inherent,  and  inalien- 
able right  to  enjoy  and  defend  life  and  liberty,  and  (in  all  of  these 
except  Missouri)  to  the  pursuit  of  happiness.'^  (The  same  may  be 
implied  in  other  States  from  the  provisions  of  §§  10,  71,  184.) 
And  in  most  of  these  States,  also,  that  they  have  such  natural  right 
to  obtain  safety.'^ 

§  13.     Property?^  —  In  more  than  half  the  States  the  Constitu- 


»  Ala.,  Ida.,  Ky.,  La.,  Mon.,  N.  D., 
N.  Y.,  S.  D.,  Utah,  Wy. 

^  Equality  is  first  mentioned  in  the 
Virginia  Bill  of  Rights,  §  1 :  "By  nature 
equally  free  and  independent,"  and  in 
the  Declaration  of  Independence,  "All 
men  are  created  equal."  It  is  no  part 
of  the  English  Constitution,  except  as 
freemen  have  equal  rights  at  law.  This 
legal  (but  neither  political  nor  social) 
equaUty  was  re-estabUshed  in  England 
as  early  as  Henry  II.  (II.  Taylor,  3), 
and  was  clearly  implied  in  John's 
Magna  Carta,  caps.  39,  40;  and  the 
great  statute  of  Westminster  I  (1275). 
"  Common  right  shall  be  done  to  rich 
and  poor  alike  without  respect  to 
persons." 

^  Ind.  1,  1;  Mass.  1,  1;  Me.  1,  1; 
Neb.  1,  1;  N.  C.  1,  1;  N.  H.  1,  1; 
S.  C.  1,  1;  Vt.  1,  1. 

*  Ark.  2,  2;  Mon.  3,  3;  Pa.  1,  1; 
S.  D.  6,  1;  Wis.  1,  1;  Wy.  1,  2.  See 
also  §§  10,  20,  and  184. 

«  Ida.  1,  1 ;  lo.  1, 1 ;  Ky.  1 ;  Nev.  1,  1. 

•  Ark.  2,  3;   Fla.  Decln.  Rts.  1. 

^  Ala.  1,  1;  Ga.  1,  1,  2;  Kan.  B.  of 
Rts.  1;  O.  1,  2;  Va.  1,  1;  W.  Va.  3,  1; 
Wy.  1,  3.     See  §§  10,  12,  20,  184. 


«  Ct.  1, 1;  Ky.3;  N.  M.*  1851,  July 
12,  §  2;  Ore.  1,  1;  Tex.  1,3. 

9  S.  C.  1,  5. 

'»  R.  I.  1,  2. 

"  Inalienable  rights  are  based  on  the 
social  compact  theory;  but  have  no 
higher  standing  than  the  Constitution 
at  law.  The  word  is  not  in  the  Declara- 
tion of  Independence. 

'2  Ala.  1,  1 ;  Ariz.*  Preamble  B.  Rts. ; 
Ark.  2,  2;  Cal.  1,1;  Col.  2,  3;  Del. 
Preamble;  Fla.  Decln.  Rts.  1;  Ida. 
1,  1;  111.  2,  1;  Ind.  1,  1  lo.  1,  1;  Kan. 
Bill  of  Rts.  1;  Ky.  1;  La.  1;  Mass. 
1,  1;  Me.  1,  1;  Mo.  2,  4;  Mon.  3,  3; 
Neb.  1,  1;  Nev.  1,  1;  N.  O.  1,  1;  N  D. 
1;  N.  H.  1,  2;  N.  J.  1,  1;  O.  1,  1; 
Okla.  2,  2 ;  Pa.  1,  1 ;  S.  C.  1,  1 ;  S.  D.  6, 
1;  Utah  1,  1;  Va.  1,  1;  Vt.  1,  1;  W. 
Va.  3,  1;   Wis.   1,  1;  Wy.    1,  2. 

13  Cal,  Col.,  Fla.,  Ida.,  lo.,  Ky., 
Mass.,  Me.,  Mon.,  Nev.,  N.  D.,  N.  J., 
O.,  S.  C,  S.  D.,  Va.,  Vt.,  W.  Va.;  as 
cited  in  §  12. 

"  The  property  right  is  recognized 
in  Magna  Carta  (cap.  28.  No  constable, 
etc.,  shall  take  corn  or  other  chattels 
of  any  man  unless  he  presently  give 
him  money  for  it,  etc. ;   and  see  also 


PART   l]  BILL   OF   EIGHTS  :    CIVIL  129 

tion  declares  expressly  that  all  men  have  a  natural  right  to  acquire, 
possess,  and  protect  property  *  (it  seems  the  right  of  property  is  also 
recognized  in  other  States  by  the  provisions  of  §  183,'  and  compare 
also  §  90);  but  in  three,  only  that  all  men  have  such  right  to  the 
enjoyment  of  the  fruits  of  their  own  labor. ^  So,  the  Constitutions 
of  other  States  declare  that  the  right  of  property  is  "before  and 
higher  than  any  constitutional  sanction."  * 

§  14.  Rights  to  Labor  or  Trade.  —  "Every  citizen  of  this  State 
shall  be  free  to  obtain  employment  wherever  possible,  and  any  person 
or  corporation  maliciously  interfering  or  hindering  in  any  way  any 
citizen  from  obtaining  or  enjoying  employment  already  obtained  from 
any  other  corporation  or  persons  is  guilty  of  a  misdemeanor."  ^ 

The  rights  of  labor  shall  have  just  protection  through  laws  calcu- 
lated to  secure  to  the  laborer  proper  rewards  for  his  services  and  to 
promote  the  industrial  welfare  of  the  State.  ^ 

No  law  shall  be  passed  fixing  the  price  of  manual  labor. '^ 

These  provisions  are  novel  and  interesting,  but  may  carry  the 
courts  further  than  the  Legislature  intended;  for  instance,  the  first 
might  make  unlawful  the  sympathetic  strike,  or  any  strike  against 
union  or  non-union  labor.  The  right  to  one's  free  liberties  or 
customs  is,  however,  guaranteed  in  Magna  Carta  itself. 

§  15.  Reputation.  —  In  four  States  the  Constitution  declares 
that  men  have  a  natural  right  to  acquire,  possess,  and  protect 
reputation.^ 

§  16.  Special  or  Exclusive  Privileges.^  —  The  Constitutions  of 
many  States  prohibit  to  the  Legislature  any  grant  of  special  privi- 

caps.  30,  31,  39.    No  man  shall  be  dis-  *  Ark.  2,  22;   Ky.  13,  3;    and  see 

seised  of  his  freehold);     but  the  word  §§  90,  130.     "Higher"  is  impossible, 

"property"  is  first  used  in  the  Va.  B.  '  N.  D.  23;  Utah    12,  19. 

Rts.    The  Declaration  of  Independence  «  Mon.  1,  22;  Wy.  1,  22. 

does  not  mention  it  at  all.     The  Fed.  ^  La.  51.     See  Art.  45  for  the  new 

Const,   only  in  the    14th   Amt.     (See  New  York  provision  as  to  public  work. 

also     §     130    and    Art.    9,     Eminent  «  Ark.  2,  2;    Del.  Preamble;    N.  D, 

Domain.)  1;  Pa.  1,  1. 

'  Ark.  2,  2;  Ariz.  Preamble  B.  Rts. ;  Blackstone     mentions     this     as     a 

Cal.  1,  1;    Col.  2,  3;    Del.  Preamble;  natural   right;    but  it  appears  in  no 

Fla.  Decln.  of  Rts. ;   Ida.  1,1;   lo.  1,  1;  other  American  or  EngHsh  Constitu- 

Ky.  1;  Mass.  1,  1;  Me.  1,  1;  Mon.  3,  3;  tional  document. 

Nev.  1,  1;   N.  D.  1,   N.  H.  1,  2;   N.  J.  ^  The  usual  provision  is  that  such 

1,1;  0.1,1;  Pa.  1,1;  S.  C.  1,1;  S.  D.  privileges    may    not    be    granted    by 

6,  1;    Utah  1,  1;    Va.  1,  1;  Vt.  1,  1;  specialact;  and  compare  §§  20,  21,  392, 

W.  Va.  3,  1.  394,  395  (15),  and  Arts.  50  and  60,  and 

2  Ala.  1,  35;    Ga.  1,  1,  2;    111.  2,  1;  see  U.  S.   Constitution   1,    9;  Va.    B. 

Ky.  4;  Mo.  2,  4.  Rts.  4.  There  is  nothing  of  this  kind 

»  N.  C.  1,  1;   Mo.  2,  4;  Okla.  2.  2.  in  the  English  Constitution. 

9 


130  THE    STATP:    constitutions  [book    III 

leges  or  immunities  to  any  citizen  or  class  of  citizens,  ^  or  corpora- 
tion.- No  man  or  set  of  men  is  entitled  to  exclusive  public  emolu- 
ments or  privilef^es  from  the  community.^ 

Except  in  consideration  of  public  services.* 

No  special  privileges  or  immunities  shall  be  granted  that  may  not 
be  altered  or  revoked  by  the  Legislature.^ 

In  Kansas,  the  wording  is  that  no  such  special  privilege  or  immu- 
nity can  be  granted  except  by  the  Legislature. 

And  in  three  States  the  operation  of  a  general  law  cannot  })e  sus- 
pended by  the  Ix^gislature  for  the  benefit  of  any  individual,  corpora- 
tion or  association.® 

§  17.  Hereditary  Privileges.''  —  In  many  States  the  Constitution 
declares  that  no  hereditary  emoluments,  privileges,  or  honors  can  be 
granted ;  ^  or  no  hereditar}^  distinctions ;  "  no  hereditary  offices ;  *" 
no  title  of  nobility;  ^^  no  hereditary  emoluments. ^- 

§  18.  Pensions  cannot,  by  the  Constitution  of  one  State,  be 
granted  but  in  consideration  of  public  services;  and  not  for  more 
than  one  year  at  a  time.^^  In  two,  the  Legislature  are  forbidden  to 
establish  any  general  pension  system.'* 

Pensions  may  be  granted  only  for  military  or  naval  service;  but 
officers  may  not  be  retired  on  pay  or  half  pay.'^ 

Pensions  to  confederate  soldiers,  sailors  and  their  widows  are 
provided  for  in  several  Constitutions.'® 

'  Ark.  2,  18;  Cal.  1,  21;   Ind.  1,  23;         »  Ala.  1,  29;   Ark.  2,  19;   Ct.  1,  20; 

lo.  1,  6;   Ky.  3;   Mass.  1,  6;   N.  D.  20;  Kan.  B.  of  Rts.  19;   Mass.  1,  6;   Me.  1, 

Okla.  5,  51;  Ore.  1,  20;  S.  D.  G,  18;  23;  N.  C.  1,30;  O.  1,  17;  Tenn.  1,30; 

Tenn.  11,  8;  Wash.  1,  12.  Wash.  1,  28;  W.  Va.  3,  19. 

=2  lo.,  Okla.,  Wash.,  Territories.  »  Ala.;   Del.  1,  19;    Ind.  1,  35;    Ky. 

3  Ct.  1,  1;   Ky.  3;  N.  C.  1,  7;  N.  M.  23;    Me.;    Md.  Decln.  Rts.  42;    Ore.  1, 

1851,  July  12,  §  2;    Tex.  1,  3;    Va.  1,  29;  Pa.  1,  24. 
4;    Vt.  1,  7.  '"  Mass.;   N.  H.  1,  9;   Va.  1,  4. 

*  This    exception    is    not    made    in         "  Ala.,    Ky.,  Ind.,  Md.,   Ore.,   Pa., 

some  (Ct.,  N.  D.,  S.  D.,  Wash.).  S.  C. 

5  Ala.  1,  22;   Cal.  1,  21;   Col.  2,  11;         ^^  Ala.;  S.  C. 
Ga.  1,  3,  2;   Ida.  1,  2;   111.  2,  14;   Kan.         "  N.    H.    1,   36.    The   same   would 

B.  of  Rts.  2;    Mo.  2,  15;    Mon.  3,  11;  result  from  the  Constitutional  principles 

Neb.  1,  16;   N.  D.  20;   O.  1,  2;   Pa.  1,  of  taxation. 
17;  S.  D.  6,  12;  Tex.  1, 17;  Utah  1,  23;         "  Md.  3,  59;  S.  C.  3,  32. 
Wash.  1,  8.    See  also  §§  212,  503.  '«  S.  C. 

8  Ark.  5,  25;    Tenn.  11,  8.     See  §§         "  Ga.  1893 p.  19,  La.  303;  1902,  129; 

394,  395  (15).  Miss.  272;    S.  C.  13,  5;    Tex.  1897,  p. 

'  Compare  U.  S.  C.  1,  9.     See  also  275.    See  U.  S.  14th  Amt.  §  4. 
§212. 


PART    l]  BILL   OF    RIGHTS:    CIVIL  131 


Article  2.    Civil  Rights 

§  20.  General  Provisions.^  —  The  Constitution  of  Georgia  pro- 
vides that  the  social  status  of  the  citizen  shall  never  be  the  subject 
of  legislation.-  So  in  South  Carolina,^  that  no  person  shall  be  dis- 
qualified as  a  witness,  nor  be  prevented  from  acquiring,  holding, 
and  transmitting  property,  nor  be  hindered  in  acquiring  education, 
nor  be  liable  to  any  other  punishment  for  any  offence,  nor  be  subject 
in  law  to  any  other  restraints  or  disqualifications  in  regard  to  any 
personal  rights,  than  such  as  are  laid  upon  others  under  like  circum- 
stances. "All  citizens  of  the  State  possess  equal  civil  and  political 
rights  and  public  privileges."  *  "Every  citizen  is  entitled  to  equal 
representation  in  the  government."  ^  "The  civil  rights  of  the 
people  shall  not  be  abridged."  ^ 

"Since  equality  in  the  enjoyment  of  natural  and  civil  rights  is 
made  sure  only  through  political  equality,  the  laws  of  this  State 
affecting  the  political  rights  and  privileges  of  its  citizens  shall  be 
without  distinction  of  race,  color,  sex,  or  any  circumstance  or  con- 
dition whatsoever  other  than  individual  incompetency,  or  unworthi- 
ness  duly  ascertained  by  a  court  of  competent  jurisdiction."  '^ 

§  21.  Color  Distinction.^  —  By  the  Constitution  of  Arkansas  also 
no  citizen  shall  be  ever  deprived  of  any  right,  privilege,  or  immunity, 
nor  exempted  from  any  burden  or  duty,  on  account  of  race,  color, 
or  previous  condition.^ 

So  in  Maryland,  as  to  the  right  of  being  a  witness  in  a  court  of 
law.^°  So,  in  other  States,  as  to  the  right  of  suffrage  and  holding 
office.  ^^  Distinction  on  account  of  race  or  color  in  any  case  what- 
ever is  prohibited,  and  all  classes  of  citizens  shall  enjoy  equally  all 
common,  public,  legal,  and  political  privileges.*-  So,  in  several,  it 
is  specially  provided  that  all  the  public  schools  should  be  free  and 
open,  without  regard  to  race  or  color, ^^  or  caste.'* 

In  INIississippi  the  Constitution  provides  that  the  right  of  all 

»  Compare  §§11,  16,  184.  »  Ark.  2,  3. 

'  Ga.  1,  1,  18.  1"  Md.  3,  53. 

'  S.  C.  1,  12.  "  Nev.   18,  1;  Okla.   1,6;  S.  C.  1, 

♦  Ala.  1,  2;   S.  C.  1,  31.  10;  Terr.*  U.  S.  1860. 

«  W.  Va.  2,  4.  12  ^vy   i^  3 

«  Ariz.  Bill  Rts.  6.  "  Col.  9,  8;   Ida.  9,  6;   Wash.  9,  1; 

'  Wy.  1,  3.  Wy.  7,  10. 

«  Compare  U.  S.  C.    Amts.  14,    15,         "  Wash, 
which  of  course  apply  in  all  the  States; 
and  see  §§  240,  241. 


132  THE  STATE   CONSTITUTIONS  [BOOK   III 

citizens  to  travel  upon  all  public  conveyances  shall  not  be  in- 
fringed.' 

§  22.  Exceptions.  —  By  the  Constitutions  of  a  few  States  the 
right  of  voting  is  confined  to  whites,-  but  this  provision  is  rendered 
null  by  the  Fifteenth  Amendment. 

By  the  Constitutions  of  many  States  white  and  colored  children 
shall  not  be  tauglit  in  the  same  [public]  schools.^ 

By  that  of  Oregon  no  Chinaman  can  hold  real  estate,  or  hold  or 
work  a  mining  claim."'  And  by  that  of  three  States  no  native  of 
China  can  vote  or  hold  office.^  The  old  Constitution  of  Mississippi 
legitimated  all  children,  born  before  or  after  its  adoption  [bSOS], 
of  persons  not  married,  but  cohabiting  as  husband  and  wife  on 
December  1,  1869;  and  such  persons  are  to  be  taken  as  married.^ 
So  by  the  old  Virginia  Constitution  the  children  of  parents,  one  or 
both  of  whom  were  slaves  at  or  during  the  period  of  cohabitation, 
and  who  were  recognized  by  the  father  as  his  children,  and  whose 
mother  was  recognized  by  such  father  as  his  wife,  and  was  co- 
habited with  as  such,  shall  be  capable  of  inheriting  from  such 
father  as  if  born  in  la^vful  wedlock.''  And  by  the  old  South  Caro- 
lina Constitution  "no  person  shall  be  disfranchised  for  felony  or 
other  crim'es  committed  while  a  slave."  * 

The  Constitution  of  Oregon  provides  that  the  Legislature  shall 
pass  laws  prohibiting  free  negroes  from  coming  to  or  living  in  the 
State,  and  making  such  action  felony.^  And  in  several,  the  inter- 
marriage of  white  persons  with  negroes  or  mulattoes,^"  or  their 
cohabitation  as  husband  and  wife,  is  forbidden." 

By  that  of  California  the  Legislature  is  to  prescribe  all  necessary 
regulations  for  the  protection  of  the  State  and  the  counties,  cities, 
and  towns  thereof  from  the  burdens  and  evils  arising  from  the  pres- 

1  Miss.  1,  24.  «  Miss.  12,  22,  Constitution  of  1868. 
"  Kan.  5,  1;  Md.  1,  1;  O.  5,  1;  Ore.        '  Va.  11,  9,  Constitution  of  1870. 

2,  2.  «  S.  C.  8,  12,  Constitution  of  1868. 

2  Ala.  256;  Del.  10,  2;  Ga.  8,  1,  1;  »  Ore.  1,  35.  Now  unconstitutional 
Ky.  187;   La.  248;   Miss.  207;   Mo.  11,  under  the  14th  Amt. 

3;  N.  C.  9,  2;  Okla.  1,  5;  13,  1;  S.  C.  "  A  mulatto  is  a  person  who  has  J  or 
11,  7;  Tenn.  11,  12;  Tex.  7,  7;  Va.  140;  more  of  ne^ro  blood.  (S.  C,  Fla., 
W.  Va.  12,  8.     See  §  50.  Miss.)     "  Colored  "  or  "  Negro  "  means 

*  Ore.  15,  8.  the  African  race;  all  others  are  included 

^  Cal.  2,  1;  Ida.  6,  3;  Ore.  2,  6.  in  white.  Okla.  23,  11.  Such  laws  are 
See  also  Art.  24  for  the  provisions  in  valid  under  the  Fourteenth  Amend- 
full  concerning  the  right  of  voting,  ments;  for  they  apply  to  whites  and 
This  provision  is  of  course  abrogated  blacks  equally. 

by  U.  S.  Constitution,  Amt.  15,  as  to  '^  Ala.  102;  Fla.  16,  24;  Miss.  263; 
voting  by  U.  S.  citizens.  N.  C.  14,  8;   S.  C.  2,  33;   Tenn.  11,  14. 


PART    l]  BILL   OF   RIGHTS  :     CIVIL  133 

ence  of  aliens  who  are  or  may  become  vagrants,  paupers,  mendi- 
cants, criminals,  or  invalids  afflicted  with  contagious  or  infectious 
diseases,  and  from  aliens  otherwise  dangerous  or  detrimental  to  the 
well-being  or  peace  of  the  State,  and  to  impose  conditions  upon 
which  such  persons  may  reside  in  the  State,  and  to  provide  the 
means  and  mode  of  their  removal  from  the  State  upon  failure  or 
refusal  to  comply  with  such  conditions;  and  no  corporation  shall 
employ  directly  or  indirectly  in  any  capacity  any  Chinese  or  ]\Ion- 
golian,  and  the  Legislature  shall  pass  laws  to  enforce  this  provision; 
and  no  Chinese  shall  be  employed  in  any  State,  municipal,  or  other 
public  work  except  as  a  punishment  for  crime.  ^  And  further  the 
presence  of  foreigners  ineligible  to  become  citizens  of  the  United 
States  is  declared  to  be  dangerous  to  the  well-being  of  the  State; 
and  the  Legislature  is  to  discourage  their  immigration  by  all  means 
within  its  power ;  and  Asiatic  coolieism  is  declared  a  form  of  human 
slavery,  and  prohibited,  and  all  contracts  for  coolie  labor  are  void; 
and  the  Legislature  may  prescribe  penalties  for  companies  or  cor- 
porations formed  in  any  country  for  the  importation  of  such  coolie 
labor;  and  the  Legislature  is  to  delegate  all  necessary  powers  to 
cities  and  towns  for  the  removal  of  Chinese,  or  their  location  in 
prescribed  portions  of  such  towns;  and  also  to  provide  legislation 
to  prohibit  the  introduction  of  Chinese  into  the  State. ^ 

§  23.  Sex  Distinctions:  Voting.  —  The  Constitutions  of  all  the 
older  States  specify  that  the  elective  franchise  is  confined  to  males. ^ 

But  in  three  States  the  Legislature  may  at  any  time  enact  a  law 
to  extend  the  right  of  suffrage  to  women  of  lawful  age,  otherwise 
qualified;  and  such  enactment  shall  take  effect  if  approved  by  a 
majority  of  the  electors  at  a  general  election.*  In  Colorado  it  was 
so  submitted  and  adopted.  In  two  States  it  was  rejected,^  while 
in  three  States  the  Constitution  provides  for  female  suffrage,®  making 
four  full  suffrage  States  in  all. 

»  Cal.  19,  1-3.  6,  2;  Va.   18;  Vt.  2,  8;  Wash.  6,  1; 

^  Cal.  19,  4.  W.  Va.  4,  1 ;  Wis.  3,  1.     This  would 

^  Ala.   177;    Ark.  3,   1;    Cal.  2,   1;  be  the  common  law  in  the  absence  of 

Col.  7,  1;  Ct.  6,  2;  Del.  5,  2;  Fla.  14,  1;  statute,  though  women  voted  in  New 

Ga.  2,  1,  2;    111.  7,  1;    Ind.  2,  2;    lo.  Jersey  and   possibly  other   States    in 

2,  1;    Kan.  5,  1;    Ky.  145;    La.  185;  early  times,  though  never  in  England. 

Mass.  2,  1,  3,  4;  Amt.  3;  Md.  1,  1;  Me.  See  §  240. 

2,1;  Mich.  7,1;  Minn.  7,1;  Miss.  247;  *  Col.  7,  2;    N.  D.  122;    Wis.     See 

Mo.  8,  2;   N.  C.  6,  1;   Neb.  7,  1;   Nev.  §  240  G. 

2,  1 ;  N.  H.  2,  27 ;  N.  J.  2,  1 ;  N.  Y.  2,  1 ;  «  S.  D.  7,  2 ;  Wash.  27,  17.    The  vote 

O.  5,  1 ;  Okla.  3,  1 ;  Ore.  2,  2 ;  Pa.  8,  1 ;  in  South  Dakota  was  45,  682  to  22, 072. 

R.  I.  2,  1;  S.  C.  2,  3;  Tenn.  4.  1;  Tex.  «  Ida.  Amt.  6;  Utah  4,  1;  Wy.  6,  1. 


134  THE   STATE   CONSTITUTIONS  [BOOK   III 

But  in  several  States  the  Constitution  provides  tliat  women  of  the 
age  of  twenty-one  may  vote  at  any  election  of  school  officers,  or 
upon  aqy  measure  relating  to  schools/  or  libraries.^ 

And  in  Louisiana  they  may  vote  upon  all  (juestions  submitted  to 
the  taxpayers  as  such  of  any  municipal  or  other  political  subdivi- 
sions of  the  State,  subject  to  ordinary  age  and  residence  c|uaHfi- 
cations,  either  in  person  or  by  their  agents  authorized  in  %vi-iting.' 

Upon  all  questions  submitted  to  the  vote  of  the  taxpayers  of  the 
State,  or  any  political  division  thereof,  women  who  are  taxpayers  and 
possessed  of  the  qualifications  for  the  right  of  suffrage  required  of  men 
by  this  Constitution,  shall,  equally  with  men,  have  the  right  to  vote.* 

§  24.  Sex  Distinctions:  Schools.  —  The  Constitutions  of  some 
States  declare  that  the  Legislature,  in  providing  for  the  formation 
and  regulation  of  schools,  shall  make  no  distinction  between  the 
rights  of  males  and  females.^     So  as  to  admission  to  the  University.* 

And  in  several  States,  women  may  hold  any  office  pertaining 
solely  to  the  management  of  schools.'' 

§  25.  Sex  Distinctions:  Occupation.  —  The  Constitution  of  Cali- 
fornia provides  that  no  person  shall,  on  account  of  sex,  be  disquali- 
fied from  entering  upon  or  pursuing  any  lawful  business,  vocation, 
or  profession.^ 

In  Missouri  and  Oklahoma,  the  Constitution  specifies  that  the 
Governor  and  members  of  the  Legislature  must  be  male.** 

Women  may  be  notaries  public.  ^°  They  may  hold  any  office 
except  as  otherwise  provided  by  the  Constitution.*^ 

*  Col.  7,  1;  Ida.  6,  2;  Minn.  7,  8;  statutes  of  the  more  advanced  States; 
Mon.  9,  10;  N.  D.  128;  Nev.  15,  3;  see  also  Art.  45.  These  statutes  have 
Okla.,  3,  3;  S.  D.  7,  9;  Wash.  6,  2.  frequently  been  held  unconstitutional 
"Until  otherwise  provided"  (Ida.),  as  depriving  women  of  their  liberties. 
"The  legislature  may  so  provide"  They  are  only  valid  where  clearly  in  the 
(Wash.).  interest    of    morality    or   the   general 

2  Minn.  1897,  175,  health,  and  probably  never  in  States 

'  La.  199.  with  constitutional  provisions  like  the 

*  lo.*  1121;  Mon.  9,  12.  above.     Of  such  nature  are  the  laws 

*  Kan.  2,  23;  Wash.  9, 1;  Wy.  7, 10.  limiting  their  hours  of  labor  or  age  of 
**  Mon.  11,  9.  employment  differently  from  men. 
^  Col.  7,  1 ;    Ida.  6,  2 ;    Minn.  7,  8 ;    Tliese  liave,  in  most  of  the  States  ex- 

Mon.   9,    10;   N.   D.    128;     Pa.    10,   3.  cept  Massachusetts,  been  held  uncon- 

"  Unless  the  Legislature  otherwise  pro-  stitutional. 

vide"  (Ida.).    "Or  libraries,"  in  Minn.         »  Mo.  4,  4  &  6;  5,   5;  Okla.  6,  3. 

*  Cal.  20,  18.  At  the  common  law  And  so  in  Oklahoma  of  the  other  execu- 
every  employment  was  open  to  them  tive  officers.  This  is  common  law,  iu 
except  political  offices,   the  army  or  the  absence  of  any  statute. 

navy,  and  learned  professions.     They         '"  Va.  32. 

are  now,  however,  forbidden  to  engage         *^  S.  D.  7,  9.     In  other  States,  by 

in  many  trades  or  employments  by    the  common  law,  not.    See  Arts.  20,  21. 


PART   l]  BILL   OF   RIGHTS:    CIVIL  135 

The  rights  of  citizens  in  two  States,  "to  vote  and  hold  office  shall 
not  be  denied  or  abridged  on  account  of  sex.  Both  male  and 
female  citizens  of  this  State  shall  equally  enjoy  all  civil,  political 
and  religious  rights  and  privileges."^ 

§  2G.  Sex  Distinctions:  Property.  —  In  many  States  there  are  con- 
stitutional provisions  concerning  the  property  of  married  women. ^ 

In  detail :  the  real  and  personal  property  of  a  female  acquired 
before  marriage  remains  her  estate  and  property,  and  is  not  (without 
her  consent  in  Florida,  executed  as  a  conveyance)  liable  for  the 
debts  of  the  husband,  and  may  be  devised  and  bequeathed  by 
her  as  if  unmarried;  and  so  also  all  property  to  which  she  may 
become  entitled  after  marriage.^  The  Legislature  shall  provide  for 
the  protection  of  the  rights  of  women  in  acquiring  and  possessing 
property,  real,  personal,  and  mixed,  separate  and  apart  from  the 
husband.*  The  Legislature  are  to  provide  for  the  registration  of 
such  separate  property.^ 

A  married  woman's  separate  real  or  personal  property  may  be 
charged  in  equity  and  sold,  or  the  uses,  rents  and  profits  thereof 
sequestrated  for  the  purchase  money  thereof ;  or  for  money  or  thing 
due  upon  any  agreement  made  by  her  in  wTiting  for  the  benefit  of 
her  separate  property;  or  for  the  price  of  any  property  purchased 
by  her,  or  for  labor  and  material  used  with  her  knowledge  or  assent 
in  the  construction  of  buildings,  or  repairs,  or  improvements  upon 
her  property,  or  for  agricultural  or  other  labor  bestowed  thereon, 
with  her  knowledge  and  consent.^ 

The  Legislature  shall  never  create  by  law  any  distinction  between 
the  rights  of  men  and  women  to  acquire,  own,  enjoy,  and  dispose  of 
property  of  all  kinds,  or  their  power  to  contract  in  reference  thereto. 
Married  women  are  hereby  fully  emancipated  from  all  disability  on 
account  of  coverture.  But  this  shall  not  prevent  the  Legislature  from 
regulating  contracts  between  husband  and  wife,  nor  shall  the  Legis- 
lature be  prevented  from  regulating  the  sale  of  homesteads.^ 

§  27.      Sex  Distinctions:    Custody  of  Children.  —  In  Kansas  the 

*  Utah  4,  1 ;  Wy.  6,  1.  rights  of  a  man,  save  that  she  is  to  a 

2  Ala.  209;    Ark.  9,  7;    Cal.  20,  8;  certain  extent  protected. 
Fla.  11,  1;    Ga.  3,  11,  1;    Kan.  15,  6;         *  Ala.,  Ark.,  Cal,  Fla.,  Ga.,  Mich., 

Md.  3,  43;  Mich.  16,  5;  Miss.  94;  N.  C.  N.  C,  N.  D.,  Nev.,  Ore.,  S.  C,  S.  D., 

10,  6;    N.  D.  213;    Nev.  4,  31;    Ore.  Tex.,   Utah. 

15,  5;    S.  C.  17,  9;    S.  D.  21,  5;    Tex.         "  Fla.,  Kan.,  Md.,  Nev.,  W.  Va. 

16,  15;  Utah  22,  2;  W.  Va.  6,49.     By        *  Ark.  9,  8;  Nev.;  Ore.;  Tex. 
the  laws  of  all  States,  she  has  all  the        *  Fla.  11,  2. 

'  Miss.  94. 


136  THE   STATE   CONSTITUTIONS  [BOOK   III 

Constitution  provides  that  the  T>(><:^islature  shall  provide  for  women 
equal  rights  with  the  husband  in  the  possession  of  their  children.' 

Article  3.     Slavery  and  Apprenticeship 

§  30.  Slavcrij  Prohihiicd.  —  In  most  States  slavery  and  invol- 
untary servitude  remain  forbidden  by  the  Constitution;  and  they 
are  prohibited  in  all  the  States  by  the  Thirteenth  Amendment.^ 

Except  ^  as  a  punishment  for  crime  whereof  the  party  has  been 
duly  convicted;  and  in  Vermont,  when  bound  by  law  for  the  pay- 
ment of  debts,  damages,  fines,  costs,  and  the  like. 

In  Maryland  there  is  a  constitutional  provision  that  slavery  shall 
not  be  re-established.*  In  Tennessee,  the  Legislature  can  make  no 
law  recognizing  the  right  of  property  in  man.^ 

§  31.  Compensation  for  Slaves.  —  In  two  States  the  Constitution 
provides  that  the  Legislature  shall  have  no  power  to  make  compen- 
sation for  emancipated  slaves.®  The  provision  in  Mississippi  to 
this  effect  was  left  out  of  the  new  Constitution.  It  is  forbidden, 
however,  by  United  States  Amendment  14  (4). 

And  in  INIaryland  the  Constitution  declares  that,  slavery  having 
been  abolished  by  the  authority  of  the  United  States,  compensation 
is  due  the  State  from  the  National  Government.^ 

§  32.  Apprenticeships.  —  In  Vermont  service  by  indentures  and 
apprenticeships  is  allowed,  but  must  expire  at  the  age  of  twenty-one 
in  males  and  eighteen  in  females.^ 

In  Indiana,  no  indenture  of  any  negro  or  mulatto  made  out  of 
the  State  is  valid. ^ 

§  33.  Terms  of  Service  over  the  age  prescribed  in  §  32  are  for- 
bidden by  the  Constitution  of  Vermont  unless  entered  into  with 
the  full  consent  of  the  party  serving.  ^° 

'  Kan.  15,6.  21;   Vt.  1,   1;  Wis.  1,  2.     See   §   10, 

"  Ala.  1,  32;    Ark.  2,  27;   Ariz.  *B.  note. 

Rts.  20;    Cal.  1,  18;    Col.  2,  26;    Fla.  '  This  exception  is  omitted  in  a  few 

Decln.  of  Rts.  19;  Ga.  1,  1,  17;   Ind.  1,  (Vt.,  R.  I.,  N.  M.). 

37;    lo.   1,  23;    Kan.  Bill  of  Rts.  6;  *  Md.  Decln.  Rts.  24. 

Ky.  25;  Mich.  18,  11;  Minn.  1,  2;  Miss.  «  Tenn.  1,  34. 

15;   Mo.  2,  31;  Mon.  3,  28;  N.  C.  1,  33;  «  Md.  3,  37;  N.  C.  1,  6. 

N.  D.  17;    Neb.  1,  2;    Nev.  Ordinance  ^  Md.  Decln.  Rts.  24. 

3  &  1,  17;  N.  M.*  76,  1;  O.  1,  6;  Ore.  «  Vt.  1,  1. 

1,  34;  R.  I.  1,  4;  Tenn.  1,  33;  Utah  1,  »  Ind.  1,  37.            ^°  Vt.  1,  1. 


PART  l]  BILL  OF   RIGHTS  :   CIVIL  137 


Article  4.    Religious  Rights 

§  40.  General  Rights  of  Conscience.'^  —  In  all  the  States  except 
Alabama  (for  which  compare  §§  42,  43),  these  are  recognized  by 
the  Constitution,  in  slightly  varying  phrases.  Thus,  "every  man 
may  worship  God  according  to  his  own  conscience."  ^  "The  free 
enjoyment  of  all  religious  sentiments  and  the  different  modes  of 
worship  shall  ever  be  held  sacred."  ^  "It  is  the  duty  of  the  Legis- 
lature to  pass  suitable  laws  to  protect  every  religious  community  in 
the  peaceable  enjoyment  of  its  own  mode  of  worship."  *  "No 
human  authority  or  law  ought,  in  any  case  whatever,  to  control  or 
interfere  with  the  rights  of  conscience  in  matters  of  religion."  ^ 
"No  person  ought  to  be  molested  in  person  or  estate  on  account 
of  his  religious  persuasion."  ^ 

§  41.  Limitations.  — ^  But  the  provisions  of  §§  40,  45  are  not  to 
excuse  acts  of  licentiousness,  or  justify  practices  inconsistent  with 
the  peace  and  safety  of  the  State ;  ^  or  polygamy ;  ^  or  bigamy,  or 
advice  and  propaganda  thereto.^  Nor  to  excuse  disturbance  of  the 
public  peace. ^"^    Nor  "to  justify  practices  inconsistent  with  the  rights 

*  In   newer   Western  States,  these  Mon.  3,  4;    N.  D.  4;    Nev.  Ordinance 

clauses  are  made  irrevocable  without  3  &  Const.  1,  4;  N.Y.I,  3;  Okla.,  1,2; 

the  consent  of  the  U.  S.  (Ida.,   N.  D.,  S.  C.  1,  4;  S.  D.  22,  1;  Utah  1,  4;  Va. 

S.  D.,  Utah,  Wash.,  Wy.).     See  U.  S.  58;    Wash.  26,    1;    Wis.    1,    18;     Wy. 

Amt.  1.    "Congress  shall  make  no  law  Ordinance,  1,  18. 

respecting    an    establishment    of    reli-         *  Ark.  2,  25;    Neb.;    N.  M.*  1851, 

gion,  or   proliibiting  the   free  exercise  July  12,  §  4;  O. ;  Tex. 
thereof."     This  constitutional  right  to         *  Ark.;    Del.  1,  1;    Ga. ;    Ind.  1,  3; 

free  worship  does  not  appear  to  be  rec-  lo.  1,  3;    Kan.;   Ky.  6;   Mich.;   Minn.; 

ognized   in  any   British   constitutional  Mo.;  N.  C. ;  Neb.;  O. ;  Ore.  1,  3;  Pa.; 

document.     It  first  appeared  in  a  stat-  Tenn. ;  Tex.;   Utah  1,  4;   Vt. ;  Wis. 
uteof  Charles  I.  and  in  the  Va  B.  Rts.         «  Ga.  1,  1,  13;  Ida.  21,   19;  Mass.; 

16.  Md. ;  Me. ;  Nev. ;  N.  H. ;  N.  M.* ;  N.  D. 

2  Ark.  2,  24;  Ct.  7,  1;  Del.  Pre-  203;  Okla  ;  R.  I.;  S.  D.  26,  18;  22,  1; 
amble;  Ga.  1,  1,  12;  Ida.  Sched.  19;  Utah  3,  1;  Va.  58;  W.  Va.;  Wy.  21,2; 
Ind.    1,    2;    Kan.  B.    Rts.    7;    Ky.    1;  Wash.  26,1. 

La.  4;  Mass.  1,  2;  Md.  Decln.  Rts.  36;         '  Ariz.*  B.  Rts.  13;   Cal.  1,  4;   Col. 

Me.  1,  3;  Minn.  1,  16;   Mo.  2,  5;  N.  C.  2,  4;  Ct.  1,  3;   Fla.  Decln.  Rts.  5;  Ga. 

1,26;  Neb.  1,4;  N.H.I,  5;  N.J.  1,3;  1,    1,    13;    Ida.    1,  4;    111.  2,  3;    Md. 

N.  M.*  95,  1;   1851,  July  12,  §  4;  O.  1,  Decln.  Rts.  36;   Minn.  1,  16;   Miss.  18; 

7;  Ore.  1,  2;  Pa.  1,  3;  R.  I.  1,  3;  S.  D.  Mo.  2,  5;   Mon.  3,  4;  N.  D.  4;  Nev.  1, 

6,3;  Tenn.  1,3;  Tex.  1,6;  Utah  1,  1;  4;  N.  Y.  1,3;  S.  D.  6,  3;  Wash.  1,  11; 

Va.  16;  Vt.  1,  3;  Wash.  1,  11;  W.  Va.  Wy.  1,  18. 
3,  15.  «  Ida.,  Utah. 

3  Cal.  1,  4;  Col.  2,  4;  Ct.  1,  3;   Fla.         »  Ida.,  Mon. 

Decln.   Rts.  5;  Ida.  1,  4;   111.  2,  3;   lo.        '"  N.  H.  1,  5  ;   Mass.  1,  2;  Me.  1,  3; 
1,  3;    La.  4;    Mich.  4,  39;    Miss.  18;    Md. 


138 


THE    STATE    CONSTITUTIONS 


[hook  III 


of  others."  '  No  person  is  to  disturb  others  in  their  rcHgious 
worship. - 

§  42.  Compulsory  Support  of  Churches.  —  No  man  can  be  com- 
pelled, against  his  consent,  to  support  or  attend  any  church.^  Nor 
to  send  his  children  to  any  school  to  which  he  may  be  conscien- 
tiously opposed.'  No  person  of  one  particular  sect  shall  be  com- 
pelled to  contribute  to  the  support  of  ministers  of  another  sect.^ 

§  43.  Established  Church.  —  The  Constitutions  of  some  States 
provide  that  there  shall  be  no  established  church."  Others  say 
that  there  shall  be  no  preference  shown  any  one  scct.^  No 
subordination  of  one  sect  to  another.^  No  union  of  Church  and 
State.''  But  the  Constitutions  of  two  States  declare  that  every  sect 
ought  to  observe  the  Lord's  day  and  to  keep  up  some  sort  of 
religious  worship.*" 

No  charter  may  be  granted  to  any  church  or  religious  corporation, 
but  their  title  to  property  may  be  secured  to  an  extent  to  be  limited 
by  law,** 

§  44.  State  Support.  —  By  the  Constitutions  of  many  States  no 
money  can  be  taken  from  the  public  treasury  in  aid  of  any  church, 
sect,  or  sectarian  institution.*^  Or  in  aid  of  any  priest,  etc.*^  Nor 
from  any  municipal  corporation.**  Nor  can  property  of  the  State 
ever  be  appropriated  for  such  purpose.*^  Nor  property  of  any  mu- 
nicipality.*"   Nor  shall  money  be  appropriated  for  religious  services 


1  Md.,  Mo.,  Va. 

2  Mass.,  Me.,  N.  H.,  N.  M.* 

3  Ala.  1,  3;  Ark.  2,  24;  Col.  2,  4 
Ct.  7,  1;  Del.  1,  1;  Ida.  1,  4;  111.  2,  3 
Ind.  1,  4;  lo.  1,  3;  Kan.  B.  of  Rts.  7 
Ky.  5;  Md.  Decln.  Rts.  36;  Mich.  4,39 
Minn.  1,  16;  Mo.  2,  6;  Mon.  11,  9 
Neb.  1,  4;  N.  J.  1,  3;  O.  1,  7;  Pa.  1,  3 
R.  I.  1,  3;  S.  D.  6,  3;  Tenn.  1,  3;  Tex 

1,  6;   Va.  58;   Vt.  1,  3;  W,  Va.  3,  15 
Wis.  1,  18. 

*  Ky. 

'  N.  H.  1,  6. 

«  Ala.  1,  3;    lo.  1,  3;   La.  4;   N.  J. 
1,4;  S.C.I,  4;  Utah  1,4;  Va.  58. 
^  Ala.;    Ark.  2,  24;    Cal.  1,  4;    Col. 

2,  4;  Ct.  1,  4;  Del.  1,  1;  Fla.  Decln. 
Rts.  6;  Ida.;  111.2,3;  Ind.  1,4;  Kan. 
B.  Rts.  7 ;  Ky.  5 ;  La.  53 ;  Mass.  Amt. 
11;  Me.  1,  3;  Minn.  1,  16;  Miss.  18; 
Mo.  2,  7;  Mon.;  N.  D.  4;  Neb.  1,  4; 
Nev.  1,  4;  N.  H.  1,  6;  N.  M.*  1851, 
July  12,  §  4;  N.  J.;  N.  Y.  1,  3;  O.  1,  7; 


Pa.  1,  3;  S.  D.  6,  3;  Tenn.  1,  3;  Tex. 
1,6;  Va.  58;  W.  Va.  3,  15;  Wis.  1,  18; 
Wy.  1,  18. 

«  N.  H.,  Mass.,  Me. 

»  Utah. 

"  Del.  1,  1;   Vt.  1,  3. 

"  Va.  59. 

12  Ala.  1,  3;  Cal.  4,  30;  Col.  9,  7 
Fla.  Decln.  Rts.  6;  Ga.  1,  1,  14;  III 
8,  3;  Ind.  1,  6;  La.  53;  Mich.  4,  40 
Minn.  1,  16;  Miss.  66;  Mo.  2,  7;  Mon 
5,  35;  Okla.  2,  5;  Ore.  1,  5;  Pa.  3,  18 
S.  C.  11,  9;  S.  D.  6,  3;  Tex.  1,  7;  Utah 
1,  4;  Va.  67  &  141;  Wash.  1,  11;  Wis. 
1,  18;  Wy.  1,  19. 

>3  La. 

'*  Cal;  Col.;  Ida.  9,  5;  111.;  Mo.  11, 
11;   W.  Va.  3,  15. 

15  Cal.;  Col.;  Ida.  9,  5;  111.;  Mich.; 
Mo.;  Okla.;  S.  C;  S.  D.;  Tex.;  Va. 
10,  13. 

'«  Cal.;  Col.;  111.;  Mo.;  S.  C;  S.  D. 
8,  16. 


PART    l]  BILL   OF   RIGHTS:    CIVIL  139 

in  the  Legislature.*  Nor  shall  the  State  or  anv  countv  or  muni- 
cipality  accept  any  grant  or  gift  of  land,  money  or  other  property  to 
be  used  for  sectarian  purposes.^ 

But  by  the  Constitution  of  New  Hampshire  the  Legislature  may 
authorize  towns  or  parishes  to  provide  at  their  own  expense  for  the 
support  of  Protestant  ministers.^  And  in  Massachusetts  *  and 
Missouri  parishes  may  do  so.  So  in  Maine,  religious  societies.^ 
But  in  Virginia  and  West  Virginia  it  is  expressly  provided  to  the 
contrary." 

For  religious  corporations  and  their  support,  see  also  §  323 ;  for 
schools,  §  54. 

§  45.  Religious  Test  —  In  many  States  no  religious  test  may  be 
required  as  a  qualification  for  office,^  for  any  public  trust  under  the 
State,^  for  voting,*"  for  serving  on  juries,*"  or  for  being  a  witness  in 
a  court  of  law.** 

Nor  can  a  man  be  questioned  in  a  court  as  to  his  religious  belief, 
in  order  to  shake  his  credit,*-  or  be  deprived  of  any  civil  right  as  a 
citizen  on  account  of  his  religious  sentiments.*^ 

§  46.  Limitations.  —  But  by  the  Constitution  in  a  few  States, 
a  man  cannot  hold  office  who  denies  the  being  of  Almighty  God  or 
the  existence  of  a  Supreme   Being.**     Nor   is  he  competent  as  a 

»Mich.  4,  24;  Ore.  »  Ala.,Cal.,Del.,  Ga.,  Ind.,  lo.,  Kan., 

^  Ida.  9,  5;  Neb.  8,  11;    S.  D.  Md.,    Me.,    Mich.,    Minn.,   Mo.,  N.  J., 

3  N.  H.  1,  6.  Ore.,  Tenn.,  Tex.,  Utah,  Wis.,  Wy. 

*  Mass.  Amt.  11.  *  Ark.,  Kan.,  Minn.,  Utah,  W.  Va. 

6  Me.  1,3.  *"  Cal.;    Md.  Decln.  Rts.  36;    Mo.; 

8  Tlie  introduction  of  these  provi-   N.  D.  4;  Ore.  1,  6;   Tenn.  1,  6;  Utah; 
sions  into  the  Virginia  Bill  of  Rights  is   Wash. ;  W.  Va. ;  Wy. 
commemorated    on    Jefferson's    tomb.        "  Ark.;   Cal.;    Fla.   Decln.   Rts.   5; 
The  Church  of  England  was  "  estab-    Ind.  1,  7;    lo.;    Kan.;    Md.;    Mich.  6, 
lished "  in  Virginia  before  the  Revo-   34 ;    Minn. ;    Mo. ;    N.  D. ;   Neb. ;    Nev. 
lution,    as,    more    recently,    was    the    14;  N.  Y.  1,  3;  O.;  Ore.;  Tex.  1,  5; 
"  Congregational  "  or  English  Calvinist   Utah;  Wash.;  Wis.;  Wy. 
church  in  Massachusetts  and  Connec-        *-  Ore.  1,  6;   Wash, 
ticut,  to  the  extent  that  taxes  were       "  Ala.;  Ariz.*  B.  Rts.  13;  Col.  2,  4; 
levied  in  support  of  the  same.  Ida.;    111.  2,  3;    lo.  1,  3;   Ky.  5;   Mich. 

'  Ala.  1,  3;  Ark.  2,  26;  Cal.  20,  3;  4,  41;  Mon.  3,  4;  N.  J.;  Okla.;  R.  I. 
Del.  1,  2;  Ga.  1,  1,  13;  111.  5,  25;  Ind.  1,  3;  S.  D.  6,  3;  Va.  5,  14;  Vt.  1,  3; 
1,  5;  lo.  1,  4;  Kan.  B.  Rts.  7;  Mass.  W.  Va.  3,  15.  This  provision  would 
Amt.  7;  Md.  Decln.  Rts.  37;  Me.  1,  3;  seem  to  apply  generally  to  the  rights 
Mich.  18,  1;  Minn.  1,  17;  Miss.  18;  of  voting,  holding  office,  serving  on 
Mo.  2,  5;  Neb.  1,4;  N.J.  1,4;  N.  M.*  juries,  or  being  witnesses.  Compare 
95,  1;    1851,  July  12,  §  3;   N.  Y.  12,  1;    §   40,   ad  fin.     Religious  disqualifica- 

0.  1,  7;    Okla.,  1,  2;  Ore.  1,  4;    R.  I.    tion  only  disappeared  from  England  in 

1,  3;    Tenn.  1,  4;  Tex.  1,  4;  Utah  1,    the  nineteenth  century. 

4;  Va.  58;  Wash.  1,  11;  W.  Va.  3,  11;        '"  Ark.  19,  1;   Miss.  265;   N.  C.  6,  5; 
Wis.  1,  19;  Wy.  1,  18.     See  U.  S.  6,  3.     S.  C.  4,  3;    17,  4;   Tex.  1,  4. 


140  THE   STATE   CONSTITUTIONS  [BOOK   III 

^vitnoss.'  Nor,  it  seems,  can  ii  nuin  hold  oflice  unless  he  helieves 
in  Ciod-  and  in  a  future  state  of  rewards  and  j)unishnients.^  And  a 
man  who  does  not  believe  in  (lod  and  a  future  state  of  retribu- 
tion will  be  deemed  incompetent  as  a  witness  or  juror.* 

§  47.  Oaths  and  Afjirmuiiuii.s.  —  The  provisions  of  §  40  shall 
not  be  construed  to  dispense  with  oaths  or  afhrmations.''  And  the 
mode  of  administering  an  oath  shall  be  such  as  is  most  binding 
upon  the  ])erson  sworn."  The  general  form  is  to  be  such  as  shall 
be  deemed  by  the  Legislature  the  most  solemn  appeal  to  God,^  but 
an  affirmation  may  be  made,  instead  of  an  oath,  by  Quakers.* 
Any  oath  or  affirmation,  taken  as  above,  renders  the  person  liable 
for  perjury,  if  falsely  taken,  as  if  the  oath  were  in  the  ordinary 
form.^ 

§  48.  Sundays  and  Sabbaths.  —  By  the  Constitution  of  Ten- 
nessee no  person  shall,  in  time  of  peace,  be  required  to  perform  any 
service  to  the  public  on  any  day  set  apart  by  his  religion  as  a  day 
of  rest.^" 

§  49.  Superstitious  u^es  are  not  recognized  in  the  American 
law.     White,  §  19. 

Article  5.     Education 

§  50.  General  Right.^^  —  In  some  States  the  Constitution  declares 
that  the  people  have  a  right  to  education,  which  it  is  the  duty  of  the 
State  to  guard  and  maintain,'^  "without  distinction  of  race,  color, 
caste  or  sex."  ^^ 

In  others,  that  a  general  diffusion  of  knowledge  and  intelligence 
being  essential  to  the  preservation  of  the  rights  and  liberties  of  the 
people,  it  shall  be  the  duty  of  the  Legislature  to  encourage  the 
promotion  of  intellectual,  scientific,  moral,  social,  and  agricultural 
improvement,^*  "to  cherish  the  interests  of  literature  and  the  sci- 
ences," ^^  or  "  to  encourage  schools  and  the  means  of  instruction."  ^^ 

*  Ark.  and  so,  possibly,  by  the  c.  1.  in  "  See  §  21.  There  is,  of  course,  no 
other  States.  White,  p.  65.  constitutional  right  to  free  education 

^  Md.    Decln.    Rts.    37;     Pa.  1,   4;   except  where  so  specified. 

Tenn.  9,  2.  i^  N.  C.  1,  27 ;  Wash.  9,  1 ;  Wy.  1,  23. 

"  Pa.,  Tenn.  "^  j^a.  9,  6;  Wash.;  Wy.  7,  10.     See 

*  Ark.;  Md.  Decln.  Rts.  36.  §  21. 

«  Ark.  2,  26;    Col.  2,  4;    Ida.  1,  4;  "  Cal.  9,  1;  Ind.  8,  1;  To.  9,2,3;  Kan. 

111.  2,  3;   Mon.;   Neb.  1,  4;   O.  1,  7.  6,  2;  Mass.  5,  2;   Md.  Decln.  Rts.  43; 

«  Ind.  1,8;  Ky.  232 ;  Md.  Decln.  Rts.  Mich.  13,11;  Miss.  201 ;  N.  D.  151 ;  Nev. 

39;   Ore.  1,  7;  Tex.  1,  5;   Wash.  1,  6.  11,  1;  W.  Va.  12,  12.     See  also  §  391. 

'  Ky.  15  Mass.;  N.  H.  2,  82;  Tenn.  11,  12. 

«  Mass.  Amt.  6;   N.  H.  "  i^^^  g^  i-   m^ss.;   Me.  8,  1;   N.  C. 

»  Mass.,  N.  H.,  Tex.  9,  1 ;  N.  D.  147;  Neb.  1,  4;  N.  H.;  O. 

'°  Tenn.  11,  15.  1,  7;  R.  I.  12,  1;  S.  D.  8,  1;  Tex.  7,  I. 


PART   l]  BILL   OF   raCIITS  :    CIVIL  141 

"  All  religious  societies  or  bodies  of  men,  united  or  incorporated 
for  the  advancement  of  religion  or  learning,  or  other  pious  or  chari- 
table purposes,  ought  to  be  encouraged  and  protected  in  the  enjoy- 
ment of  the  rights,  immunities,  and  estates  which  they  in  justice 
ought  to  enjoy,  under  such  regulations  as  the  Legislature  direct."* 

This  right  or  duty  of  education  is  not  mentioned  or  referred  to 
in  the  Federal  Constitution,  though  most  of  the  other  fundamental 
principles  are.  It  would  therefore  seem  without  the  power  of  the 
national  government  to  prescribe,  limit  or  regulate  the  State  com- 
mon schools  (10  Bush,  681),  (63  Ky.  49).  A  treaty  to  that  effect, 
though  valid  in  favor  of  a  foreign  power,  would  not  be  binding 
upon  the  States  except  as  a  consequence  of  the  war  power. 

§  51.  Free  Schools.  — The  Constitutions  of  nearly  all  the  States 
provide  for  a  system  of  free  schools.^  And  in  most  of  the  newer 
States  there  is  provided  by  the  Constitution  a  school  fund  to  be 
used  for  that  purpose.^ 

§  52.  Time  of  Holding.  —  The  schools  must  be  held,  in  several 
States,  for  at  least  three  months  a  year  in  every  district;*  in  others, 
at  least  four  months,^  and  in  some  six." 

'  Vt.  2,  41.  Congress  after  they  had  adopted  con- 


2  Ala.  256;  Ark.  14,  1;  Cal.  9,  5 
Col.  9,  2;  Del.  10,  1;  Fla.  12,  1;  Ga 
8,  1,  1;    Ida.  9,  1;    111.  8,  1;    Ind.  8,  1 

10.  9,  1,  12;  Kan.  6,  2;  Ky.  183;  La, 
248;  Md.  8,  1;  Me.  8,  1;  Mich.  13,  4 
Minn.  8,  3;  Miss.  201;  Mo.  11,1;  Moa 

11,  1;  Ord.,  N.  C.  9,  2;  N.  D.  147 
Neb.  8,  6;  Nev.  11,  2;  N.  J.  4,  7,  6 
N.  Y.  9,  1;  0.6,2;  Okla.  13,  1;  Ore 
8,3;  Pa.  10,1;  S.  C.  11,5;  S.  D.  8,  1 
22,  1;  Tex.  7, 1;  Utah  3,  4;  10,  1;  Va 
129;   Vt.  2,  41;    Wash.   9,   1;    26,   1 


stitutions  which  were  declared  "re- 
publican in  form"  (U.  S.  Stats.  1890, 
656  and  664).  One  of  these  enabling 
acts  also  required  it  to  be  according  to 
the  principles  of  tlie  Declaration  of 
Independence ;  which  would  seem  to 
make  it,  after  all,  a  constitutional 
document. 

2  Ala.  256,  279;  Ark.  14,  2;  Cal. 
9,  4;  Col.  9,  3;  Ct.  8,  2;  Del.  10,  2; 
Fla.  12,  4;  1893,  p.  491;  Ga.  8,  1,  1; 
Ida.  9,  2;  111.  8,  2;  Ind.  8,  2;  lo.  9,  2,  1; 


27,  1;   W.  Va.  12,  1;   Wis.  10,  3;   Wy.  Kan.  6,  3 ;  Ky.  184;  La.  248;  Md.  8,  3; 

7,    1;    Ord.    (Irrevocable  witliout  the  Mich.  13,  2;  Minn.  8,  2;  Amt.  1903,  25; 

consent  of  the   U.    S.;    Wy.,    Wash.,  Miss.  206;  Mo.  11,  6-8;  Mon.  11,  2;  N.  C. 

Utah,  N.  D.,  S.  D.,  Mon.)   See  U.  S.  9,  4,  5;  N.  D.  1,  53;  Neb.  8,  3;  Nev.  11, 

Stats.   1889,    180.      In    Georgia,    free  2;    N.  J.  4,  7,  6;   N.  Y.  9,  3;    O.  6,  1; 

schools  are  to  be  established  only  on  Ore.  8,  2;  Pa.;  R.  I.  12,  2;  S.  C.  11,  6; 

two-thirds  vote  of  the  town  or  county  S.  D.  8,  2;    Tenn.  11,  12;    Tex.  7,  2; 

or   district,  and    the    legislature  may  Utah  10,  3;  9,  6;  Va.  134;  Wash.  9,2; 

prescribe  who  sliall  vote  at  such  elec-  16,  1;  W.  Va.  12,  4;  Wis.  10,  2;  Wy. 

tion  (1903,  p.  23).     The  Dakotas,  Mon-  7,  2.    (This  also  is  irrevocable  without 

tana,  and  Washington  were  authorized  the  consent  of  the  U.  S.  as  above  in 

admission    by    Act    of    Cong'ess    pre-  six  of  the  new  Western  States.) 

scribing  that  they  should  adopt  State  *  Col.;    lo.  9,  1;    Kan.  6,  4;    Mich. 

constitutions     containing     this,     with  13,5;   Mo.  11,  2;   Mon.  11,6;  Neb.  8, 

other  similar  provisions,  upon  procla-  7;  Wis.  10,  5;  Wy.  7,  8. 

mation  by  the  President.     For  Utah,  «  Miss.  205;   Mo.  11,  7;   N.  C.  9,  3; 

see  U.  S.  Stats.  1894,  138.     Idaho  and  Va.  136. 

Wyoming  were  admitted  by  Acts  of  ^  Cal.,  Nev. 


142  THE   STATE   CONSTITUTIONS  [BOOK    III 

In  Vermont,  there  must  be  one  or  more  schools  in  each  town, 
and  one  or  more  grammar  schools  in  each  county;'  antl  one  in 
each  township,  in  Minnesota.- 

§  53.  A(jc  of  Scholars.  —  The  free  schools  must  provide  instruc- 
tion for  all  persons  between  the  ages  of  5  and  21,-'  G  and  21,''  4  and 
20,^  5  and  1S,°  G  and  18/  G  and  20,"^  7  and  20,"  7  and  21.'"  See 
also  §  55. 

§  54.  Unscctarian  *S'c/<oo/,v."  —  No  public  money  shall  ever  be 
appropriated  for  the  support  of  any  sectarian  or  denominational 
school;  '-  and  the  same  would  follow  from  §  44  in  other  States. 
So,  no  public  money  can  be  appropriated  for  any  school  not  under 
the  exclusive  control  of  the  State  or  its  school  department.''' 

No  sect  shall  ever  have  any  exclusive  right  to,  or  control  of,  the 
State  school  fund.'^  So,  the  school  fund  is  for  "the  equal  benefit 
of  the  people. ' '  "^ 

No  sectarian  instruction  or  control  is  permitted,  directly  or  in- 
directly in  any  of  the  State  schools.'"  No  religious  test  required, 
for  teacher  or  student.'^  No  teacher  or  student  shall  ever  be  re- 
quired to  attend  or  participate  in  any  religious  service  whatever.'^ 

§  55.  Compulsory  Attendance.  —  The  Constitutions  of  a  few 
States  specify  that  the  Legislature  may  enact  laws  requiring  the 
attendance  at  a  free  school  of  all  persons  between  six  and  eighteen 
years  of  age  for  a  term  of  at  least  sixteen  months  in  all;  "^  and 


1  Vt.  2,  41.  Utah  10,  13;  Wash.  9,  4;  Wis.  1,  18; 

'  Minn.  8,  3.  Wy.  7,  8;  Ord.  5.     Irrevocable  —  see 

'  lo.  9,  2,   7;    Kan.;    Minn.   8,  2;  §  51  note  2  —  in  tlie  six  new  States 

Neb.  8,  6.  and    in    Idaho,    by   Act    of    Congress 

*  Ark.;  Col.;   Ida.  9,9;  Mon.  11,  7;  (U.    S.    Stat.    1890,    656,  658),    as  to 
N.  C. ;  Pa.;  S.  C.  11,  5;  Wy.  7,  9.  lands  granted  by  the  United  States. 

*  Ore.  8,  4;  Wis.  10,  3.  '^  Cal.;  Mass.;  Me.  8,  1;  Mon.  5,  35; 
«  N.  J.  11,  8;  N.  D.;  Pa.  3,  17;  S.  C.  11,  9; 
'  Ida.  9,  9;  La.   Okla.  Va.  141;  Wy.  3,  36. 

8  Mo.  11,  1.  "  Kan.  6,  8;    Miss.  208;    O.  6,  2; 

«  Va.  Tex.  1891,  195. 

>"  Ala.  '"  Ct.  8,  2;    N.  J.;    Tenn.    11,    12; 

"  See  also  §§  44,  323.     For  sex  dis-  Wash.  26,  1;  9,  4;  Wy.  7,  12,  Ord. 

tinctions,    color    distinctions,    etc.,    in  '"Cal.;  Col.  9,  8;  Ida,  9,  6;  Mon.  11, 

schools,  see  §§  22,  24.  9;  N.  D.  147;  Neb.  8,  11;  Nev.  11,  9; 

'■'  Ala.  263;    Cal.  9,  8;  Col.   9,   7;  S.  C;   S.  D.  22,  4;  26,  1;   8,  16;   Utah 

Del.  10,  3;    Ida.  9,  5;    111.  8,  3;    Ky.  10,  1;   3,  4;   Wis.  10,  3  (irrevocable  in 

189;    La.  253;    Mass.  Amt.  18;    Mich,  the  new  States,  see  §  51,  note  2). 

4,  40;   Minn.  8,  3;   Miss.  208;   Mo.  11,  ^'  Ida.  9,  6;  Mon.;  Utah  10,  12  &  1. 

11;    Mon.    11,   8;    5,  35;    N.   D.    152;  '^  Col,  Ida.,  Wy. 

N.  H.2,82;  N.  Y.  9,  4;  Pa.  10,  2;  S.  C.  '">  N.  C.  9,   15;   Okla.,  Wy.   (unless 

11,  9;   S.  D.  8,  16;   26,  18;  Tex.  7,  5;  educated  by  other  means). 


PART   l]  BILL   OF    RIGHTS:    CIVIL  143 

SO,  of  children  between  eight  and  twelve/  not  mentally  or  physically 
disabled."  '"  So,  of  all  persons  between  six  and  eighteen  for  a  terra 
of  at  least  three  years, ^  or  three  months  each  year.* 

So,  in  Nevada,  the  Legislature  may  enact  laws  to  insure  general 
attendance.^     See  also  §  53. 

§  56.  Universities.  —  The  Constitutions  of  many  of  the  States 
provide  for  a  State  university  or  college." 

So,  in  Massachusetts,  Harvard  College  is  specially  recognized  by 
the  Constitution  and  provided  for ;  ^  and  in  Connecticut,  Yale ;  ^ 
In  Virginia,  William  and  INIary ;  °  in  Louisiana,  Southern  University 
for  Negroes;  ^°  in  California,  Leland  Stanford. ^^ 

And  in  some  States  the  Constitution  provides  specially  for  free 
normal  schools  or  academies.  ^^ 

And  in  others  for  an  agricultural  school  or  schools;  ^^  for  a 
school  of  mines;  ^*  for  a  mechanical  school;  ^^  manual  training 
or  technical  schools;  ^^  a  school  of  forestry;  ^^  a  scientific  school;  ^^ 
kindergartens.  ^^ 

§  57.  The  Language  taught  in  the  schools  is,  by  the  Constitu- 
tion of  two  States,  to  be  English;-"  but  in  Louisiana  the  instruc- 
tion may  be  given  in  French. 

§  58.  Libraries.  —  The  Constitutions  of  two  States  provide  that 
there  shall  be  at  least  one  public  library  in  each  township.-^ 

So,  in  Iowa,  the  State  school  fund  may  be  applied  to  the  estab- 
lishment of  libraries.-^ 

§  59.     Legislative  Restrictions.  —  No  educational  or  charitable 

1  Del.  10,  1;  Va.  138.  Miss.  201;    Mon.  II,  12;    N.  C.  9,  14; 

2  Va.  N.  D.  148-215;  Nev.  II,  5;    N.  Y.  9, 
«  Col.  9,  II;  Wy.  7,  9.  I;   Pa.  3,  17;   S.  C.  10,  6;   Utah  10,  2; 

*  Okla.  13,  4.  Va.  137;  Wash.  9,  2;  W.    Va.  12,  II; 

*  Nev.  II,  2.  Wis.  10,2. 

6  Ala.  264;    Cal.  9,  9;    Col.  9,   12;         "  Ala.  266;    Cal.;    La.  255;  Mich. 

Fla.  8,  2;   Ga.  8,  6,  I;    Ida.  9,  10;    lo.  13,  II;  Miss.  8,  8;   N.  C.  9,  14;  N.  D.; 

9,  1,  II;    Kan.  6,  7;    La.  255;    Mich.  Nev.;  Okla.  13,  7;  S.  C;  Tex.  7,   13; 

13,  6-8;    Minn.  8,  4;    Miss.  213;    Mo.  Utah;  Va. 

11,5;  Mon.  II,  11;  N.  C.  9,  6,  7;  N.  D.         i*  Col.  8,  5;  N.  C;  S.  D.  14,5;  Wy. 

215;    Neb.  8,  10;    Nev.  II,  4;    N.  Y.  9,5. 

9,  2;  Ore.  8,  I:  S.  C.  II,  8;  S.  D.  14,  4;         ''  Ala.,  La.,  N.  C,  S.  C,  Tex.,  Va. 
Tex.  7,  10;   Utah  10,  4;  Wis.  10,  6;        »«  La.  256;   Va.;   Wash.  9,  2. 
Wy.  7,  I-I5.  "  N.  D. 

'  Mass.  5,  1.  »8  N.  D. 

*  Ct.  8,  1.  19  La.,  Utah. 

»  Va.  141.  2«  Ga.  8,  1,  I;  La.  251;  Mich.  13,  4. 

"  La.  256.  French  was  used  in  the  Enghsh  House 

"  Cal.  1899,  p.  493.  of  Commons  until  1414. 
»2  Cal.  9,  6;    1901,  p.  948;  Fla.  12,         -^  Ind.  13,  12;   Mich.  13,  12. 
14;   Kan.    6,  2;    La.   256;    Me.   8,   1;         -^  lo.  9,  2,  4. 


144  TIIH   STATE   CONSTITUTIONS  [ROOIv   III 

institution,  othcT  than  the  State  institutions  now  existing;,  or  ex- 
pressly provided  for  in  this  Constitution,  shall  be  estahlisiicd  by 
the  State,  except  upon  a  vote  of  two-thirds  of  the  members  elected 
to  each  House  of  the  General  Assembly.' 

Neither  the  Le<;i.slature  nor  the  State  Board  of  Education  shall 
have  power  to  prescribe  text-books  to  be  used  in  the  common  schools.^ 
In  California  they  must  be  printed  by  the  State. ^ 

The  metric  system  shall  be  taught  in  the  public  schools  of  the 
State.*     So,  agriculture,  stock-feeding,  and  domestic  science.'' 

No  teacher  or  officer  connected  with  the  public  school  system 
shall  be  interested  in  the  sale  of  text-books."  Text-books  must 
be  uniform.^  Separate  schools  for  white  and  colored  must  in 
some  States  be  provided.     See  §  22. 

Article  6.     Miscellaneous  Rights 

§  60.  Freedom  of  Speech.  —  Nearly  all  the  States  ^  provide  in 
some  phrase  for  general  freedom  of  speech;  ^  thus,  "every  man  is 
given  the  right  freely  to  vn-ite,  speak,  and  publish  his  opinions  on 
all  subjects,  being  responsible  for  the  abuse  of  that  privilege."  '" 

No  law  shall  ever  be  passed  to  abridge  or  restrain  freedom  of 
speech  and  of  the  press.  ^'  This  is  the  form  in  the  Federal  Consti- 
tution. And  so,  in  two,  of  freedom  of  speech  only;  ^-  and  in  sev- 
eral, of  freedom  of  the  press  only.^^ 

In  others,  there  is  a  declaration  that  the  liberty  of  the  press  ought 

1  La.  60.  111.  2,  4;    Ind.  1,  9;    lo.  1,  7;    Kan.  B. 

'  Utah  10,  9;  Wy.  7,  11.  Rts.  11;  Ky.  8;  La.  3;  Md.  Decln.  Rts. 

»  Cal.  Amt.  1894,  Nov.  6.  40;   Me.  1,  4;   Mich.  4,  42;  Minn.  1,  3; 

«  Utah  10,  11.  Mo.  2,  14;   Mon.  3,  10;   N.  D.  9;   Neb. 

«Okl.  13,  7.  1,5;  Nev  1,9;  N.J.  1,5;  N.  M.*95,  1; 

«  S.  D.  8,  17.  July  12,  1851,  §  5;   N.  Y.  1,  10;   O.  1, 

^  Okla.  13,  6.  11;    Okla.  2,  22;  Ore.  1,  8;    Pa.  1,  7; 

8  (Except  Del.,  N.  H.,  Mass.,  R.  I.)  S.  D.  6,  5;   Tenn.  1,    19;    Tex.    1,    8; 

®  For  speech  in  the  Legislature,  see  Utah  1,  1;  Va.  1,  12;  Wash.  1,  5;  Wis. 

§272.     Freedom  of  speech  and  of  the  1,  3;    Wy.    1,   20.     Substantially    the 

press  are  both  guaranteed  by  U.  S.  C.  English  law,  though  not  in  the  Eng- 

Amt.  1.     By  Eng.  Stat.  W.  &  M.  S.  2,  lish  Constitution.     See  White,  p.  87. 

C.  2,  the  principle  is  limited  to  speech  in  ^'  Ala.   1,  4;    Cal.;    Ct.  1,  6;    Fla. ; 

the  Legislature ;    nor  does  Blackstone  Ga. ;    Ind. ;    lo. ;   Ky.  1 ;   La.  3 ;   Mich. ; 

give  it  as  one  of  the  fundamental  rights.  Miss.  13;  Mon.;  Nev.;  N.  J. ;  N.  M.*; 

though   he   calls   liberty   of  the   press  N.  Y.;    O.;  Okla.;   Ore.;    S.  C.   1,  4; 

"  essential  to  a  free  State."    See  follow-  Tex. ;  Utah  1,  15;  Va.  12  &  58;  W.  Va. 

ing  note.  3,  7;  Wis. 

"  Ala.  1,  4;  Ark.  2,  6;  Ariz.*  B.  Rts.  '-  Col.,  Mo. 

16;  Cal.  1,  9;  Col.  2,  10;  Ct.  1,  5;  Fla.  '^  Ark.,  Del.,  Ky.,  Mass.,  Me.,  N.  Y., 

Decln.  Rts.  13;  Ga.  1,  1,  15;  Ida.  1,  9;  Pa.,  Tenn. 


PART   l]  BILL   OF   RIGHTS:    CIVIL  145 

to  be  maintained ; '  or  that  "  the  printing-presses  shall  be  free  to 
every  person  who  undertakes  to  examine  the  proceedings  of  the 
Legislature  or  any  branch  of  government;  and  no  law  shall  ever 
be  made  to  restrain  the  right  thereof."  - 

In  one,  the  general  right  extends  only  to  freedom  of  speech,  and 
freedom  to  publish  matters  relating  to  the  government  or  officers 
thereof;^  while  in  three  "any  man  may  publish  his  sentiments  on 
any  subject,  being  responsible  for  the  abuse  of  that  liberty."  ^ 

Limitations.  —  But  the  Constitution  of  West  Virginia  specifies 
that  the  Legislature  may  restrain  the  sale  of  obscene  books,  etc. ; 
and  that  they  may  provide  for  the  punishment  of  libel  and  de- 
famation; and  the  Federal  Government,  under  U.  S.  Const.  I.  8, 
(8)  denies  to  such  the  use  of  the  mails. 

§  61.  Lihel.^  —  The  Constitutions  of  many  States  provide  that 
in  all  civil  and  criminal  trials  for  libel  the  truth  may  be  given  in 
evidence.®  [This  would  seem  implied  in  certain  cases  by  the 
Constitutions  of  other  States;  see  below.]  So,  in  seven  others, 
when  the  matter  published  is  proper  for  public  information,  or  in 
prosecutions  for  libels  on  officers  or  men  in  a  public  capacity.'' 
But  in  some  the  principal  provision  applies  to  criminal  trials  only.^ 
[This,  also,  would  seem  implied  by  the  Constitutions  of  other  States 
mentioned  below.] 

And  the  truth,  in  all  civil  and  criminal  trials  for  libel,  is  a  suffi- 
cient defence.^  But  only  in  the  absence  of  malice,*"  or  when  pub- 
lished with  good  motives  and  for  justifiable  ends.** 

In  other  States  the  truth  is  a  sufficient  defence  only  in  indict- 
ments or  prosecutions  for  libel,  when  the  libellous  matter  was  pub- 
lished with  good  motives  and  for  justifiable  ends.*^ 

1  Kan.;  Md.;  Mass.  1,  16;  Minn.;  B.  Rts.  11;  La.  179;  Mo.  2,  14;  Mon 
N.  H.  1,  22;  N.  C.  1,  20;  Vt.  1,  13;  Va.  3,  10;  Nev.  1,  9;  N.  D.  9;   S.  C.  1.  21 

2  Del.  1,  5;  Ky.  8;  Pa.;  Tenn.  W.  Va.  3,  8. 

3  Vt.  1,  13.  '  Ala.  1,  12;   Del.  1,  5;   Ky.  9;   Me 

*  Del.;  N.  C;  R.  I.  1,  20.  1,  4;  N.  M.*  1851,  July  12,  §  6;  Tenn 

*  The  doctrine  of  the  general  verdict    1,  19;  Tex.  1,  8. 

and  evidence  of  truth  in  prosecutions         ^  Ark.  2,  6;    Cal.   1,  9;    lo.   1,   7; 

for  libel  grew  up  under  George  III  but  Mich.  6,  25;  Miss.  13;  N.  J.  1,  5;  N.  Y 

is  not  expressed  in  any  English  con-  1,8;  O.  1,  11;  Okla.  3,  22;   Utah  1, 

stitutional     document.     The     English  15;  Wis.  1,  3. 
Stat.  32  Geo.  Ill,  C.  60,  only  dates  from         »  Ind.  1,  10. 
1791       II  Taylor,   491.     The  EngUsh        "  R.  I.  1,  20. 

law  is  now  similar  to  the  American        "  Fla. ;  111.2,4;  Kan.;  N.  D. ;Neb. 

(note  12)  by  6  &  7  Vict.  c.  96.  See  §  132.  1,  5;   Nev.;   S.  D.  6,  5;   W.  Va. ;   \Vy. 

6  Col.  2,  10;    Ct.  1,  7;    Fla.  Decln.  1,20. 
Rts.  13;  Ga.  1,  2,  1;   Ind.  1,  10;  Kan.       '^  Ark.  2,  6;  .Cal.  1,  10;    lo.   1,  7; 

10 


146  THE   STATE   CONSTITUTIONS  [BOOK   III 

In  Indiana  the  provision  is  simply  that  the  truth  may  be  given  in 
justification  in  "all  prosecutions  for  libel."  '  And  in  Pennsylvania, 
that  no  conviction  shall  be  had  in  any  prosecution  for  the  publica- 
tion of  papers  relating  to  the  official  conduct  of  ofl^icers  or  men  in 
public  capacity,  or  to  any  other  matter  proj)er  for  public  investiga- 
tion or  information,  when  the  jury  find  that  such  publication  was 
not  maliciously  or  negligently  made." 

In  many  States  the  jury  are  to  determine  the  law  and  the  facts, 
under  direction  of  the  court,  in  all  prosecutions  for  libel ;  ^  and  in 
some,  also  in  civil  suits.*  And  may  give  a  general  verdict  as  in  other 
cases.  ^ 

The  Constitution  of  California  provides  that  indictments  or  infor- 
mations for  libels  by  newspapers  are  to  be  tried  either  in  any  county 
where  the  paper  is  published  or  in  that  of  the  plaintiff's  residence, 
unless  the  venue  is  changed  for  good  cause. ^ 

§  62.  Arms.'^  —  The  Constitutions  of  most  States  provide  that 
the  people  shall  have  the  right  to  bear  arms  in  defence  of  them- 
selves and  the  State  ;^  and  this  is  perhaps  implied  in  three  other 
States.^  In  others,  in  defence  of  themselves  only;  '°  or,  in  others, 
the  provision  is  simply  that  "they  have  the  right  to  bear  arms."  ^^ 
But  the  Legislature  may  prescribe  the  manner  in  which  arms  are  to 
be  borne;  '^  as  "with  a  view  to  prevent  crime,"  ^*  or  may  forbid  the 
carrying  of  concealed  weapons.^* 

Mich.;  Miss.;  N.J.;  N.  Y.;  O.;  Okla.;  jects   "which  are  Protestants."     The 

S.  D.  6,  5;  Utah  1, 15;  Wis.;  Wy.  1,  20.  basing  of  this  right  upon  the  necessity 

^  Ind.  1,  10.  of  miUtia,  as  in  the  Federal  Constitu- 

^  Pa.  1,  7.  tion,  is  not  historically  correct. 

3  Ala.,  Cal.,  Col.,  Ct.,  Del.,  Ga.,  Ky.,         »  Ala.  1,  26;  Ariz.*  B.  Rts.  5;   Ark. 

La.,Me.,Mich..Miss..Mo.,Mon.,N.D.,  2,5;  Col.  2,  13;  Ct.  1,  17;  Fla.  Decln. 

N.  J.,  N.  Y.,  Pa.,  S.  C,  S.  D.,  Tenn.,  Rts.  20;    Ind.  1,  32;    Ky.  1;    Mass.  1, 

Tex.,  Utah.  Wis.,  Wv.  See  White,  p.  98.  17;    Me.  1,  16;    Mich.  18,  7;   Miss.  12; 

*  Col.,  Ct.,  Mo.,  Hon.,  N.  D.,  S.  D.,  Mo.  2,  17;  Mon.  3,  13;  N.  M.*  July  12, 

Wy.  1851,  §    13;  Okla.  3,  26;  Ore.   1,  27; 

5  N.  D.  Pa.  1,  21;  S.  C.   1,  26;    S.   D.   6,  24; 

6  Cal.  1,  9.  Tenn.    1,   26;   Tex.  1,    23;    Vt.   1,  16; 

7  See  Art.  29.     Compare  Eng.  Stat.  Wash.  1,  24;    Wy.  1,  24. 

W.  &  M.  S.  2,  C.  2.    U.  S.  C.  Amt.  2.         «  Md.  Decln.  Rts.  28;   N.  H.  1,  24; 

"The  right  of  feud,   or  private  war,  Va.  1,  15.     See  §  290. 

was  a  right  which  every  Teutonic  free-         ^''  Ida.  1,  11;  Kan.  B.  Rts.  4;  O.  1, 

man   considered  inalienable  —  a  right  4;  Utah  1,  6. 

which    entered    with    him   into   every         "  Ga.  1,  1,  22;  La.  8;  N.  C.  1,  24; 

political  or  social  organization  of  which  R.  I.  1,  22. 

he  was  a  part."  (Hannis  Taylor,  I.  195).        ^-  Fla.,  Ga.,  Ida.,  Utah. 

The   right    to    arms    is    probably   pri-        '^  Tenn.,  Tex. 

mordial;     but   it   is   definitely   recog-        "  Col.,  Ky.,  La.,  Miss.,  Mo.,  Mon., 

nized  in  the  Bill  of  Rights,  as  to  sub-  N.  C,  Okla. 


PART   I J 


BILL   OF   rights:    CIVIL 


147 


§  G3.  "  Pinkerton  Men, "  etc.  —  No  armed  person  or  bodies  of 
men  shall  be  brought  into  this  State  for  the  preservation  of  the 
peace  or  the  suppression  of  domestic  violence,  except  upon  the 
application  of  the  General  Assembly,  or  of  the  Governor  when  the 
General  Assembly  may  not  be  in  session.'  —  No  armed  police  force 
or  representative  of  a  detective  agency  shall  ever  be  brought  into 
the  State  for  the  suppression  of  domestic  violence ;  nor  shall  any 
other  body  of  men  be  brought  in  for  that  purpose  except  upon 
application  of  the  Legislature,  or  the  Executive  when  the  Legisla- 
ture is  not  in  session  (as  provided  for  the  regular  army  in  the 
United  States  Constitution).^ 

No  flag  other  than  the  United  States  flag  can  be  carried.^ 

So,  the  right  to  bear  arms  does  not  authorize  individuals  or  cor- 
porations  to  organize,  maintain  or  employ  an  armed  body  of  men.* 
No  corporation  or  association  shall  bring  any  armed  person  or 
bodies  of  men  into  this  State  for  the  preservation  of  the  peace  or  the 
suppression  of  domestic  trouble  without  authority  of  law.^ 

§  G4.  Assemblies.^  —  In  all  the  States  except  Minnesota  and 
Virginia,  the  Constitution  declares  that  the  people  have  a  right  to 


1  Ida.  1,  46  ;  Ky.  225  ;  Mon.  3,  31; 
N.  D.  190;  Utah  12,  16;  Wash.  1, 
24;  Wy.  19,  1.  As  provided  for  in  U. 
S.  C.  4,  4. 

2  Ida.  14,  6;  Mon.  3,  31;  S.  C.  8,  9; 
Wy.  19,  1. 

3  Wy.  17,  4. 

*  Wash.  1,  24. 

5  Utah  12,  16.  The  objection  to 
private  war  is  by  no  means  new.  The 
complaint  of  "retainers"  or  armed 
retinue  was  frequent  in  feudal  times, 
and  was  one  of  the  causes  of  granting 
the  writ  de  odio  et  atla,  when  justice 
was  thereby  overborne.  The  Court  of 
Star  Chamber  was  created  to  sup- 
press such  "maintenance"  and  pre- 
vent "  assemblies  "  of  private  retamers 
of  powerful  persons,  much  as  a  modern 
injunction  is  directed  against  a  mob 
of  strikers.    Taswell-Langmead,  p.  296. 

*  Founded  on  U.  S.  C.  Amt.  1 ;  and 
(as  to  the  right  of  petition)  on  Eng. 
Stat.  W.  &  M.  S.  2,  C.  2.  This  right 
to  assemble  and  the  right  to  petition 
are  somewhat  different  tilings.  The 
former  right  is  not  expressed  in  any 
written  constitutional  document  of 
England,  but  it  u  attributed  by  Dicey 


(The  Law  of  the  Constitution,  p.  258) 
to  the  "result  of  the  view  taken  by  the 
courts  as  to  individual  liberty  of  per- 
son and  individual  liberty  of  speech." 
In  England  both  the  right  to  assemble 
and  the  right  to  petition  in  so  far  as 
they  are  constitutional  principles  only 
extend  to  a  peaceable  and  orderly 
meeting  or  petition ;  in  fact  the  Stat- 
ute of  13  Charles  Second  Chap.  5  for- 
bids petitions  to  the  Iving  or  Parlia- 
ment signed  by  more  than  twenty  or 
presented  by  more  than  ten  persons 
The  U.  S.  Constitutional  amendment, 
however,  expresses  both  rights,  "the 
right  of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  government 
for  a  redress  of  grievances."  Tliis 
right  to  assemble  is  not  merely  politi- 
cal (M?Clain,  p.  309)  but  extends  to 
assemblies  for  religion?,  social,  and  busi- 
ness purposes.  It  would  of  course  in- 
clude the  right  to  meet  and  combine 
for  the  purpose  of  nominating  or  de- 
feating the  nomination  of  any  political 
candidate.  Hence  an  organization  of 
American  citizens,  rich  or  poor,  for 
that  purpose, cannot  properly  be  termed 
a  conspiracy. 


148  THE   STATE   CONSTITUTIONS  [BOOK    III 

assemble  peaceably,  consult  together  and  petition  the  Legislature 
for  the  redress  of  grievances;'  to  instruct  their  representatives;^ 
and  "for  other  proper  purposes."  ^ 

But  in  one,  secret  political  societies  are  declared  dangerous  to 
liberty,  and  should  not  be  tolerated.' 

§  65.  Emigration.  —  In  six  States  the  Constitution  declares  that 
all  persons  have  a  right  to  emigrate  from  the  State.  ^  Or,  that  they 
have  a  rijjht  to  emigrate  from  one  State  to  another." 

§  66  Immigration.  —  The  Constitution  of  Alabama  declares 
that  immigration  shall  be  encouraged ; '  but  by  the  Constitution  of 
Oregon  the  Legislature  has  power  to  restrain  and  regulate  the  im- 
migration into  the  State  of  persons  not  qualified  to  become  citizens 
of  the  State.  ^ 

In  a  few  States  there  is,  by  the  Constitution,  a  Commissioner. * 
or  a  bureau  or  department  of  Lnmigration.'" 

In  Delaware  the  Board  of  Agriculture  is  to  encourage  immigration.-** 

In  Texas  the  Legislature  is  forbidden  to  create  such  a  department.'^ 


Article  7.    Rights  at  Law 

§  70.  General  Rights. '^^  —  In  nearly  all  the  States  the  Con- 
stitution declares  that  every  person  ought  to  have  a  certain  remedy 

1  Ala.  1,  25;  Anz.*  B.  Rts.  15;  guaranteed  by  the  U.  S.  Constitution. 
Ark.  2,  4;    Cal.  1,  10;    Col.  2,  24;    Ct.  See  Crandall  u.  Nevada,  6  Wall.  35. 

1,  16;   Del.  1,  16;   Fla.  Decln.  Rts.  15;         «  Vt.  1,  19. 

Ga.  1,  1,  24;    Ida.  1,  10;    111.  2,  17;         '  Ala.  1,30. 

Ind.  1,  31;   lo.  1,  20;   Kan.  B.  Rts.  3;         «  Ore.    1,   32.     See    §   22.     This   is 

Ky.  1;  La.  5;  Mass.  1,  19;  Md.  Decln.  doubtless    contrary    to    the    Federal 

Rts.    13;    Me.    1,    15;    Mich.    18,    10;  Constitution.      See    also    §    22.      The 

Miss.  11;  Mo.  2,  29;  Mon.  3,  26;  N.  C.  right  of  a  State  to  foster  immigration 

1,  25;   N.  D.  10;    Neb.  1,  19;    Nev.  1,  was  denied  by  an  executive  ruling  un- 

10;   N.  H.  1,  32;   N.  J.  1,  18;    N.  M.*  der  Roosevelt's  second  administration. 

95,  1;    1851,  July  12,  §  18;   N.  Y.    1,         »  Md.  10,  3. 

9;  O.  1,  3;  Okla.  3,  3;  Ore.  1,  26;  Pa.         '«  N.  C.  3,  17;  Va.  143;  Wash.  2,  34; 

1,  20;  R.  I.  1,  21;   S.  C.  1,  4;   S.  D.  6,  Ida.  13,  1. 

4;  Tenn.  1,  23;  Tex.  1,27;  Utah  1,  1;         '^  Del.  11,  7. 

Vt.  1,  20;  Wash.  1,  4;   W.  Va.  3,  16;         '^  ^ex.  16,  56. 

Wis.  1,  4;   Wy.  1,  21.  '^  This  provision  isfounded  on  Magna 

2  Ariz.,  Cal.,  Fla.,  111.,  Ida.,  Ind.,  lo.,  Charta,  cap.  40:  "  We  \^-ill  sell  to  no 
Kan.,  Mass.,  Me.,  Mich.,  N.  C,  Nev.,  man,  we  will  not  deny  to  any  man 
N.  H.,  N.  J.,0.,Ore.,Tenn.,Vt.,  W.  Va.  either    justice     or     right."     Compare 

3  Ala.,  Ct.,  Del.,  Ky.,  N.  D.,  Pa.,  also  §  130.  See  Taswell-Langmead, 
R.  I.,  S.  D.,  Tenn.,  Wy.  pp.  103,  107.     The  right  to  law  — as 

*  N.  C.  against  all,  king,  officer,  or  subject  — 

*  Ala.  30;  Ind.  1,36;  Ky.  24;  Ore.  is  the  cardinal  Constitutional  right, 
1,  30;  Pa.  1,  25  This  right  is  recog-  and  has  been  fully  discussed  in  Part  I. 
nized  in  Magna  Carta   (c.  42)  and  is  See  Taylor,  I.  516;    II.  3,  271. 


PART   l]  BILL  OF   RIGHTS  :   CIVIL  149 

at  law  for  all  injuries  to  the  person,  property  or  character;  and  to 
obtain  justice  freely  without  being  obliged  to  purchase  it,  com- 
pletely and  without  denial,  promptly  and  without  delay.  ^  So 
"without  sale,  denial  or  delay,"-  "or  prejudice;"^  or,  by  due 
course  of  law,*  "promptly  and  without  delay;"  '^  "by  due  course 
of  law,  without  sale,  denial  or  delay."  ^ 

And  in  many  States  that  all  courts  shall  be  open.'' 

So,  in  four,  no  person  can  be  deprived  of  his  right  to  prose- 
cute or  defend  liis  own  cause  in  any  of  the  courts  of  the 
State.* 

But  all  persons  except  witnesses  may  be  excluded  from  court 
room  in  cases  of  adultery,  rape,  etc.^ 

§  71.  Arrest  and  Search.^^  —  In  all  the  States  but  New  York  the 
Constitution  declares  that  the  people  have  a  right  to  hold  them- 
selves, their  houses  and  possessions  without  unreasonable  search 
and  seizure;  consequently,  no  warrant  of  search  or  seizure  ought 
to  be  issued  but  upon  probable  cause  supported  by  oath;  and 
the  warrant  must  describe  the  thing  or  person  to  be  seized. ^^ 
Or,  that  general  warrants,  whereby  an  officer  may  be  commanded 
to  search  suspected  places  without  evidence  oF  the  act  committed, 

»  Ark.  2,  13;    Col.  2,  6;    Ct.  1,  12;  »  Miss. 

Del.  1,  9;  Fla.  Decln.  Rts.  4;  111.  2,  19;  ^^  Compare  U.  S.  C.  Amt.  4;    Decln. 

Ind.  1,  12;    Ky.  14;   Mass.  1,  11;  Md.  Ind.  (22).    See  II.  Hannis  Taylor,  382 

Decln.  Rts.  19;   Me.  1,  19;  Minn.  1,  8;  and  Va.  B.  Rts.  10.    TWs  may  be  said 

Mo.   2,   10;    N.  C.  1,  25;    N.   D.    22;  to  be  the  only  constitutional  principle 

N.  H.  1,  14;  N.  M.*  95,  1;  Okla.  2,  6;  first  established  in  America  (by  James 

Ore.  1,  10;   Pa.  1,  11;  R.  I.  1,  5;  S.  C.  Otis,   arguing  against    writs  of   assis- 

1,  5;  Tenn.  1,   17;   Vt.   1,  4;  W.   Va.  tance  in  Massachusetts)  and  afterwards 

3,  17;   Wis.  1,  9.  adopted  in  England  (by  Lord  Camden, 

==  Ida.  1,  18;    Miss.  24;    Mon.  3,  6;  State  Trials,  Vol.  XIX.  p.  1030). 

Okla. ;  Wy.  1,  8.  "  Ala.  1,  5;  Ariz.*  B.  Rts.  7;  Ark. 

=*  Ida.  2,  15;    Cal.  1,  19;    Col.  2,  7;   Ct.  1,  8 


Ala. ;  Ark. ;  Ct. ;  Del. ;  Fla. ;  111. 
Ind.;  Kan.  B.  Rts.  18;  Ky. ;  Mass. 
Md  . ;  Me. ;  Minn. ;  Miss. ;  N.  C. ;  N.  D. 
N.  H.;  N.  M.*  1851,  July  12,  §  11 
Ore.;   Pa.;   R.  I.;   S.  C.  1,  15;   Tenn 


Del.  1,  6;  Fla.  Decln.  Rts.  22;  Ga 
1,  1,  16;  Ida.  1,  17;  111.  2,  6;  Ind.  1 
11;  lo.  1,  8;  Kan.  B.  Rts.  15;  Ky.  10 
La.  7;  Mass.  1,  14;  Me.  1,  5;  Mich 
6,  26;    Minn.  1,  10;    Miss.  23;    Mo.  2 


Tex.  1,  13;   Vt.;  W.  Va.;  Wis.  11;    Mon.  3,  7;    N.  D.  18;    Neb.  1,  7 

^  Kan.;  S.  C;  Wash.  1,  10.  Nev.  1,  18;    N.  H.  1,  19;    N.  J.  1,  6 

«  Ala.  1,  13;   La.  6;   Neb.  1,  13;  O.    N.  M.*    95,  1;    1851,  July  12,  §  7;    O 

1,16;  S.  D.  6,  20;  Utah  1,  11.  1,14;  Okla.  2,  30;  Ore.  1,  9;    Pa.  1,  8 


'  Ala.;  Col.;  Ct.;  Del;  Fla.;  Ida. 
Ind.;  Ky. ;  La.;  Miss.;  Mo.;  Mon. 
N.C.;  N.  D.;  Neb.;  N.  M.*;  O.;  Okla. 
Ore.;  Pa.;  S.  C;  S.  D.;  Tenn.;  Tex. 
Utah;  Vt.  2,  4;  Wash.;  W.  Va.;  Wy.      to  be  searched;  Okla.). 

«  Ala.  1,  10;  Ga.  1,  1,  4;  Miss.  25 
Utah. 


R.  I.  1,  6;  S.  C.  1,  16;  S.  D.  6,  11 
Tex.  1,  9;  Utah  1,  14;  Vt.  1,  11 
W.    Va.    3,   6;    Wis.  1,  11;    Wy.  1,  4. 

See  also  U.  S.  Amt.  4,  ^and  the  place 


150  THE   STATE   CONSTITUTION'S  [BOOK    III 

or  to  seize  a  person  not  named,  or  whose  ofFenee  is  not  partifularly 
described  and  supported  hy  evidenee,  are  "grievous  and  ()u<;ht  not  to 
be  granted.'  And  in  Washington  "no  jx-rson  shall  be  disturbed 
in  his  private  affairs,  or  his  home  invadeil  without  authority  of 
law."  - 

§  72.  Trial  by  Jury.^  —  In  most  States  there  is  a  general  pro- 
vision in  the  Constitution  that  the  right  to  trial  by  jury  shall  remain 
inviolate.* 

In  a  few  this  provision  applies  only  to  civil  cases,''  or  only  to 
controversies  concerning  property  and  suits  between  two  or  more 
persons  [i.  c,  civil  suits]."  So,  the  right  shall  only  in  civil  cases 
exist  when  an  issue  of  fact  proper  for  a  jury  is  joined  in  a  court 
of  law.^  In  Texas  the  Constitution  further  provides  that  the 
Legislature  shall  pass  laws  to  regulate  trial  by  jury,  and  maintain 
its  purity  and  efficiency. 

§  73.  Exceptions. —  (For  criminal  causes,  see  §  131.)  There 
is  in  many  States  no  constitutional  right  to  trial  by  jury  when  the 
amount  in  controversy  does  not  exceed  a  certain  sum.^  Or  in  minor 
courts;  as,  in  civil  cases,  before  a  justice,''  or  in  courts  not  of  record. 
But  the  right  usually  exists  when  the  title  to  real  estate  is  involved.'" 
In  some  States  the  right  is  expressly  declared  to  extend  to  all  cases 
at  law,  without  regard  to  the  amount  in  controversy.'' 

Some  States  make  an  exception  to  the  right  to  a  jury  "in  cases 
heretofore  used  and  practised."  '- 

1  Md.  Decln.  Rts.  26;  N.  C.  1,  15;  N.  J.  1,  7;  N.  M.*  95,  1;  1851,  July  12, 
N.  H.;  Tenn.  1,  7;  Va.  1,  10;  Vt.  §  12;  N.  Y.  1,  2;  O.  1,  5;  Okla.  2,  19; 

2  Wash.  1,  7.  This  seems  to  estab-  Pa.  1,  6;  R.  I.  1,  15;  S.  C.  1,  25;  S.  D. 
lish  the  much  discussed  "right  to  6,  6;  Tenn.  1,  6;  Tex.  1,  15;  Va.  B. 
privacy."  Rts.  10;  Wash.  1,  21;  Wis.  1,  5;  ^Ny. 

3  Compare    Decln.    Ind.    (22)    and  1,  9. 

U.  S.  C.  Amt.  7.     For  a  fuller  discus-         ^  Ind.  1,  20;   Ore.  1,  17;   W.  Va.  3, 

sion  of  the  questions  of  jury  trial  and  13.     See  §  131. 

due  process  of  law,  see  §§    140,   131.         °  Mass.  1,  15;    Me.  1,  20;    N.  C.  1, 

Trial  by  jury  is  not  the  judgment  of  19;  N.  H.  1,  20;  Va.  1,  11. 

his  peers  referred  to  in  Magna  Carta,         '  Md.  15,6;  Vt.  1,  12.     For  criminal 

c.  39,  but  grew  out  of  that  when  it  be-  causes,  see  §  131. 

came  the  usual  mode  of  trial  some  cen-         *  In   detail,   $5.     Md.   15,  6;     S20, 

turies  later.  Taswell-Langmead,  p.  105.  Okla.  2,  19;  W.  Va.  3,  13;  $100,  N.  H. 

Taylor,  I.  281,  310,  331,  332.  1,  20. 


*  Ala.  1,  11;  Ariz.*  B.  Rts.  8;  Ark 
2,  7;  Cal.  1,  7;  Ct.  1,  21;  Del.  1,  4 
Fla.  Decln.  Rts.  3;  Ga.  6,  18,  1;  Ida 
1,7;  111.2,5;  To.  1,9;  Kan.  B.  Rts.  5 
Ky.  7;  Md.  Decln.  Rts.  5;  Mich.  6,  27 
Minn.  1,  4;   Miss.  31;   Mo.  2,  28;   Mon 


9  W.  Va. 

'»  N.  H. 

"  Ark.,  Minn.,  S.  D.,  Wis.  This 
would  seem  to  follow  from  the  silence 
of  the  Constitution  in  other  States. 

1-  111.,  Mass.,  Md.,  Me.,  Mo.,  N.  H., 


3,  23;   N.  D.  7;  Neb.  1,  6;   Nev.  1,  3;    N.  Y.,  Pa. 


PART    l]  BILL    OF   RIGHTS  :   CIVIL  151 

The  Legislature  may  alter  the  law  trial  by  jur}^  as  to  causes  aris- 
ing on  the  high  seas,  or  concerning  mariners'  wages.  ^ 

In  some  the  Legislature  may  in  civil  cases  authorize  a  trial  by  a 
jury  of  less  than  twelve  men.-  So,  in  a  few  States,  in  inferior 
courts  [as  before  a  Justice  of  the  Peace]. ^  So,  in  New  Jersey,*  in 
civil  suits  involving  less  than  fifty  dollars,  and  in  Connecticut  in 
cases  involving  twenty  dollars  and  not  more  than  one  hundred 
dollars,  by  a  jury  of  six  men.^  And  in  three  States  the  parties 
may  agree  on  a  jury  less  than  twelve  in  number.^  In  one  no  jury 
is  allowed  in  cases  tried  before  a  Justice  of  the  Peace,  except  on 
appeal  therefrom.^  A  jury  in  justices'  courts,  civil  or  criminal, 
consists  of  not  more  than  six.^  In  Kentucky  the  Legislature  may 
provide  for  a  three-fourths  verdict  in  the  Circuit  Court.'' 

And  by  the  Constitutions  of  a  few  States,  in  civil  actions,  three- 
fourths  of  a  jury  may  render  a  verdict.'"     So,  two-thirds.'* 

Juries  are  of  eight  men,  or  four  in  minor  courts.'- 

§  74.  Waiver .^^  —  By  the  Constitutions  of  many  States  the  right 
to  a  trial  by  jury  may  be  waived  by  the  parties  in  all  cases  in  the 
manner  prescribed  by  law.'*  In  some,  the  right  shall  be  deemed 
waived,  in  all  civil  cases,  unless  demanded  by  the  parties,  or  one  of 
them,  in  the  manner  prescribed  by  law.'^ 

So,  in  one  State,  the  Constitution  only  provides  that  the  right 
shall  be  preserved  if  required  by  either  party.'*' 

§  75.     Suits  against  the  State.^''  —  In  many  States  the  Constitu- 

^  Mass.,  N.  H.  "  Mon.,     Mo.    (in    courts     not    of 

"  Col.  2,  23;    Fla.  5,  38;    La.  116;  record.) 

Mich.  4,  46;    Wy.  1,  9.    The  constitu-  "  u^ah  1,  10. 

tional  number  of  a  jury  was  always,  and  '^  For  criminal  cases,  see   §  132. 

must  necessarily  be,  twelve  men.     See  "  Ark.  2,  7;   Ariz.*  B.  Rts.  82;  Cal. 

Taylor,  I,  203,  206.  1,  7;    Del.  4,  23;    Fla.  Decln.  Rts.  2; 

*  Fla.  (six  men);  Ga.  (but  not  less  Ida.;  Md.  4,  1,  8;  Minn.  1,  4;  Mon. 
than  five  men);  III.;  lo.;  Ky.  248  3,23;  N.  C.  4,  13;  Nev.  1,3;  N.Y.I, 
(six  men);  Mo.;  Mon.;  N.  C.  4,  27  2;  Pa.  5,  27;  Vt.  2,  31;  Wash.  1,  21; 
(six  men);   N.  D.;  Neb.;   Okla.  2,  19  Wis.  1,  5. 

(six  men);  S.  D.;   Tex.  5,  17  (six  men  ''  Mich.   6,   27;   Tex.   5,    10;   Utah 

in  the    county    court);    Va. ;   Wash.;  1,  10. 

W.  Va.  "  W.  Va.  3,  13. 

*  N.  J.  1,  7.  "  For  the  method  of  prosecuting 
^  Ct.*  679.  claims  against  the  State,  in  the  courts, 
®  Cal.,  Ida.,  Mon.  see  also  §  6.53.  The  Federal  courts 
^  W.  Va.  were     forbidden     to     entertain     suits 

*  Mon.  against  a  State  by  the  eleventh 
^  Ky.  248.  amendment.  A  State,  being  sovereign, 
*"  Cal.;  Ida.  1,  7;  Mo.  1899,  p.  381;  cannot    be    sued    but    with    its   own 

Nev.;  Okla.  2,  19;  S.  D.;  Tex.  5,  13;    consent. 
Utah;  Wash.;   1,  21. 


152 


THE    STATE    CONSTITUTIONS 


[book   III 


tion  provides  that  the  Legislature  shuU  direct  a  method  by  which 
citizens  having  claims  against  it  may  sue  the  State.'  No  special 
act  authorizing  such  suit  can,  however,  be  passed.'^  In  a  few,  the 
Supreme  Court  has,  by  the  Constitution,  jurisdiction  of  claims 
against  the  State,  but  its  decisions  are  merely  recommendatory.^ 
In  others  a  board  is  created  to  audit  claims.^ 

In  others,  the  State  can  never  be  made  defendant  in  a  court  of  law 
or  equity.^ 

§  76.  The  Common  Laii\^  —  By  the  Constitution  of  Maryland 
the  people  are  declared  entitled  to  the  common  law  of  England.^ 
So,  in  New  York,  such  parts  of  the  common  law  as  formed  the 
law  of  the  colony,  April  19,  1775,  are  declared  in  force,  if  not 
repugnant.^ 

So,  in  four  States,  to  such  parts  of  the  common  law  as  were  in  force 
in  the  territory,  or  previously  to  the  adoption  of  the  present  Con- 
stitution in  the  State,  if  not  inconsistent  with  the  State  Constitution.^ 

So,    in    ^Maryland,   such   English    statutes    as    existed    July    4, 


»  Cal.  20,  6;  Del.  1,  9;  Fla.  3,  22; 
Ind.  4,  24;  Ky.  231;  La.  192;  N.  D. 
22;  Neb.  6,  22;  Nev.  4,  22;  Ore.  4,  24; 
Pa.  1,  11;  S.  C.  17,  2;  S.  D.  3,  27; 
Tenn.  1,  17;  Wash.  2,  26;  Wis.  4,  27; 
Wy.  1,  8. 

2  Fla.,  Ind.,  Nev.,  Ore. 

3  Ida.  5,  10;  N.  C.  4,  9. 

*  The  Secretary,  Treasurer,  and 
Commissioner  of  Lands  of  the  State 
shall  constitute  a  board  of  State 
auditors,  to  examine  and  adjust  all 
claims  against  the  State  not  othermse 
provided  for  by  general  law  (Mich.  8,  4). 
So,  the  Governor,  Secretary  of  State, 
and  Attorney  General  (Ida.  4,  18;  Mon. 
7,  20;  Utah  7,  13).  They  are  examined 
by  the  auditor,  and  approved  by  the 
Secretary  of  State,  with  appeal  to  the 
District  Court  (Neb.  9,  9). 

*  Ala.  14;  Ark.  5,  20;  111.  4,  26; 
W.  Va.  6,  35,  and  so,  where  the  laws  are 
silent. 

®  Altering  the  common  law,  as  it 
has  been  altered  in  England,  by  growth 
rather  than  by  statute,  still  prevails  in 
most  States.  California  and  the  Da- 
kotas,  Idaho,  AVyoming,  Utah,  Mon- 
tana, and  Oklahoma  have  attempted 
complete  codes,  however;  Georgia, 
New  York,  and  other  States,  partial 
codes.     See  Blackstone,  Book  III.  p. 


126,  for  the  earliest  argument  against 
them;  Reinsch,  Am.  Legislatures,  for 
the  latest.  The  effect  of  a  code  seems 
to  be  to  render  the  law  uncertain  and 
increase  the  number  of  suits  that  are 
carried  to  the  higher  courts.  The 
so-called  codes  of  the  earlier  kings, 
Edward  the  Confessor  or  Henry  II., 
were  in  no  sense  codes  in  this  modern 
sense. 

The  Constitutional  history  of  Eng- 
land consists  mainly  in  the  reassertion 
of  the  common  English  law  against 
Norman  ideas,  whether  in  the  form  of 
royal  prerogative,  statute,  order-in- 
council,  church  authority,  chancery, 
martial  or  civil  law.  See  Part  I.  "The 
laws  of  the  English,  the  most  ancient 
of  modern  laws,  extend  in  an  unbroken 
series  from  the  first  [written]  laws  of 
Ethelbert.  .  .  (600)  down  to  the  pres- 
ent time"  (Taswell-Langmead,  p.  33). 
They  were  recognized  by  William  the 
Conqueror  (ibid.  52),  formally  recog- 
nized by  everj^  k'ng  on  his  coronation, 
and  for  the  last  time  questioned  by 
Charles  I.    See  Taylor,  I.  425,  271. 

^  Md.  Decln.  Rts.  5. 

«  N.  Y.  1,  16. 

9  Mich.  Sched.  1;  N.  J.  10,  1;  Va. 
Sched.  1;  W.  Va.  8,  36;  Wis.  14,  13; 
Wy.  21,  3. 


PART   l]  BILL    OF   RIGHTS:    CIVIL  153 

1776,  and  are,  or  have  been  found,  applicable.  In  New  York, 
grants  of  land  made  by  the  King  after  October  14,  1775,  are 
invalid.^ 

§  77.  Law  Previously  in  Force.  —  By  the  Constitutions  gener- 
ally, such  laws  of  the  colony  (in  the  original  thirteen)  or  territory 
(in  the  others)  or  State,  as  were  in  force  previous  to  the  Constitution, 
remain  in  force  afterwards  unless  repugnant  to  it,  or  repealed 
by  the  Legislature.^ 

In  Kentucky,  all  laws,  not  local,  which  were  in  force  in  Virginia, 
June  1,  1792,  are  vaUd  in  the  former  State  if  not  repugnant  to  its 
Constitution.^  In  Maine  all  Massachusetts  laws  in  force  December  6, 
1819.^  In  West  Virginia  all  land  titles  are  valid  which  existed  under 
the  laws  of  Virginia  up  to  1863.^ 

§  78.  Miscellaneous  Rights  at  Laiv.^  —  In  Nebraska  the  Con- 
stitution provides  that  the  right  in  all  civil  cases  to  be  heard  in  the 
court  of  last  resort  by  appeal,  etc.,  shall  not  be  denied.^ 

§  79.  Venue.^  —  Every  action  shall  be  tried  in  the  county  where 
commenced  unless  the  judges  determine  that  an  impartial  trial  can- 
not be  had.® 

Article  8.    Debtors 

§  80.  Imprisonment  for  Debt.  —  In  many  States  the  Constitu- 
tion provides  absolutely  that  there  shall  be  no  imprisonment  for 
debt.^"  In  others,  no  imprisonment  for  debt  in  any  civil  action  or 
mesne  or  final  process,'^  or  in  any  action  or  judgment  founded  upon 
contract.^-     In  others,  that  there  shall  be  no  person  imprisoned  for 

1  N.  Y.  1,  17.  *  Me.  10,  1. 


2  Ala.  Sched.  1;  Ark.  Sched.  1 
Cal.  22,  1;  Col.  Sched.  1;  Ct.  10,  3 
Del.  Sched.  18;  Fla.  18,  2;  Ga.  12,  1,  3 
Ida.  21,  2;  111.  Sched.  1;  Ind.  Sched.  1 
lo.  12,  2;  Kan.  Sched.  4;  Ky.  Sched.  1 
La.  325;  Mass.  6,  6;  Md.  Decln.  Rts 
5;  Me.  10,  1;  Mich.  Sched.  I;  Minn 
Sched.  2;  Miss.  274;  Mo.  Sched.  1 
Mon.  20,  1;  N.  C.  4,  19;  N.  D.  Sched 
2;  Neb.  18,  1;  Nev.  17,  2;  N.  H.  2,  89 
N.  J.  10,  1;  N.  Y.  1,  16;  O.  Sched.  1 
Okla.  Sched.  2;  Ore.  18,  7;  Pa.  Sched 
2;  R.  I.  14,  1;  S.  C.  17,  11  &  10 
Tenn.  11,  1;  Tex.  16,  48;  Utah  24,  2 


«  AV.  Va.  13,  1. 

^  For  the  right  to  counsel,  see  §  134. 

->  See  also  §§  654,  665.     Neb.  1,  24. 

*  For  criminal  cases,  see  §  133 

9  Del.  1,  9.     See  U.  S.  C.  Amt.  6. 

"  Ala.  1,  20;  Fla.  Decln.  Rts.  16 
Ga.  1,  1,  21;  Ida.  1,  15;  Ind.  1,  22 
Kan.  B.  Rts.  16;  Md.  3,  38;  Minn.  1 
12;  Miss.  30-  Mo.  2,  16;  N.  C.  1,  16 
Nev.  1,  14;  Okla.  2,  13;  Ore.  1,  19 
S.  C.  1,  24;  Tex.  1,  18;  Utah  1,  16 
Wash.  1,  17;   Wy.  1,  5. 

"  Ark.   2,    16  ;   Ariz.*   B.   Rts.    18; 
Cal.  1,  15;    To.  1,  19;   Neb.  1,  20;    O. 


Va.  Sched.  1;  Wash.  27,  2;  W.  Va.  8,    1,  15;  Ore.  1,  15;  Tenn.  1,  18. 
36;  Wis.  14,  2;  Wy.  21,  3.  '-  Mich.  6,  33  ;    N.  J.  1,  17;  S.  D. 

3  Ky.  293.  6,  15;  Wis.  1,  16. 


154  THE    STATE    COXSTITUTIONS  [BOOK    III 

debt  in  any  civil  action  when  he  luis  ileUvered  up  his  property  for  the 
benefit  of  creditors  in  the  manner  prescribed  by  law.* 

And  a  general  exception  is  made  in  case  of  fraud.-  So  the  T>eg- 
islature  has  power  to  provide  for  the  punislmient  of  fraud,  and  for 
reaching  property  of  the  debtor  concealed  from  his  creditors.' 
Absconding  debtors  may  be  imprisoned ;  '  or  debtors  in  cases  of 
libel  or  slander ;  ^  in  civil  cases  of  tort  generally ;  "  in  cases  of 
malicious  mischief ; '  or  of  breach  of  tru.'it ;  *  or  of  moneys  col-  ^ 
lected  by  public  officers,  or  in  any  professional  employment;  "  for 
non-payment  of  fines,  etc.'" 

§  81.  Debtor  Exemption  Laws.^^  —  The  Constitutions  of  many 
States  have  provisions  exempting  certain  property  of  resident  debtors 
from  attachment,  execution  or  sale  by  creditors;  thus,  in  detail 
"that  the  privilege  of  the  debtor  to  enjoy  the  necessary  comforts  of 
life  shall  be  recognized  by  wholesome  laws  exempting  a  reasonable 
amount  of  property ;  "  *-  that  the  Legislature  shall  pass  liberal 
exemption  laws;'^  that  laws  shall  be  passed  protecting  from 
forced  sale  a  certain  amount  of  the  personal  property  of  adults, 
male  and  female ;  "  that  certain  personal  property  to  be  designated 
by  law,  to  the  value  of  five  hundred  dollars,  shall  be  exempted.'^ 

That  personal  property  (of  any  nature)  to  the  value  of  §200,  in 
the  hands  of  a  husband,  a  parent,  or  the  infant  children  of  deceased 
parents,  shall  be  exempted.'"  Personal  property  (of  any  nature)  to 
be  selected  by  the  debtor,  to  the  value  of  S500  '^  or  of  $1000;  '^  and 
wearing  apparel  and  tools  and  implements  of  trade,  to  the  value 
of  $300,  of  any  person.'^  Personal  property  of  a  resident  not  mar- 
ried or  the  head  of  a  family,  to  the  value  of  $200  and  his  clothing, 

*  Col.  2,   12;    111.  2,   12;    Ky.   18;  of  real  and  personal  property  are  not 

Mon.  3,   12;  N.  D.    15;  Okla.;  Pa.  1,  kept  distinct,  see  §§  83  e<  sej.    The  ex- 

16;  R.  I.  1,  11;  Vt.  2,  33.  emption  of  a  farmer's  horse  and  cattle 

^  Ariz.*,  Ark.,  Cal.,  Col.,  Fla.,  Ida.,  or  plow  and  of  an  artisan  's  tools  goes 

111.,  Ind.,  lo.,  Kan.,  Ky.,  Mich.,  Minn.,  back  to  Magna  Carta,  c.  20.     See  Tas- 

N.  C,  N.   D.,  Neb.,  Nev.,  N.  J.,  O.,  well-Langmead,  p.  92. 

Ore.,    Pa.,    R.    I.,    S.  C,    Tenn.,   Vt.,  ^'  Ind.  1,  22;    Minn.  1,  12;  Mon.  19, 

Wy.  4;  N.  D.  208;  Nev.  1,  U;  S.  D.  21,  4; 

"03.1,2,6.  Wis.  1,  17. 

«  Ore.,  Utah,  Wash.  '^  Col.  18,  1 ;   111.  4,  32. 

«  Nev.  "  Cal.   17,  1;    Tex.   16,  49;    Wash. 

«  Cal.,  Col.,  N.  D.  19,  1. 

»  Cal.  "  Md.  3,44;  Mich.  16,  1. 

8  Ariz.*,  Mich.  "  W.  Va.  6,  48. 

9  Ariz.*,  Mich.  "  N.  C.  10,  1 ;    S.  C.  3,  28. 

10  Mo.  "  Ala.  204. 
'1  For  States  where  the  exemptions  '*  S.  C. 


PART   l]  BILL  OF   RIGHTS:    CIVIL  155 

and  personal  property  of  the  head  of  a  family  to  the  value  of  $500, 
besides  their  clothing,  are  exempt  from  any  process  on  a  debt 
founded  on  contract;  ^  $1000  worth  of  personal  property  owned 
by  the  head  of  a  family.'  And  the  exemption  applies  only  to  heads 
of  families  in  other  States.^ 

Exceptions.  — ■  These  exemptions  do  not  prevail  against  artisans' 
liens  on  the  property  claimed  as  exempt.^  Nor,  against  a  debt  for 
the  purchase  money  of  the  exempt  property,  in  the  hands  of  the 
vendee.^  Nor,  against  a  levy  for  taxes. ^  Nor  for  debts  of  laborers 
or  servants.'' 

These  exemptions  may  be  waived  by  an  instrument  in  writing.^ 

By  the  Constitution  of  North  Carolina  a  husband  may  insure 
his  life  for  the  sole  use  and  benefit  of  his  wife  and  children,  and  at 
his  death  the  claim  shall  be  paid  to  the  widow  and  children,  or 
their  guardian,  for  their  use,  free  from  all  liabilities  of  the  husband 
or  claims  of  his  representatives.'' 

§  82.  Homestead.  —  The  same  States  usually  have  provisions 
concerning  the  homestead  exemption;  thus,  "that  the  Legislature 
shall  pass  liberal  homestead  laws."  ^^  That  there  shall  be  a  home- 
stead exempt,  as  provided  by  law.^*  That  a  homestead  in  the 
possession  of  each  head  of  a  family  is  exempt,  with  improvements 
thereon  to  the  value,  in  all  of  $1,000,'-  or  of  $1,500,'^  or  even  of 
$5,000.'* 

In  other  States  the  laws  vary  in  great  detail.'^ 

'  Ark.  9,  1,  2.  in  any  toT\Ti;  or  instead  thereof,  at  the 

*  Fla.  10,  1.  option  of  the  owner,  any  lot  in  any 
^  Cal.,  S.  C.  city,  village,  or  recorded  town  plat, 
^  Ala.  10,  4;  Minn.  1889,  p.  1.   Amt.    or  such  parts  of  lots  as  shall  be  equal 

1,  12.     N.  C.  10,  4.  thereto,  and  the  dwelling  house  thereon 

®  Ark. ;  W.  Va. ;  Okla.  12,  3.  and    its    appurtenances,    owned    and 

'  Fla.,  S.  C,  W.  Va.  occupied  by  any  resident  of  the  State, 

^  Minn.  not  exceeding   in  value    $1,500,   shall 

*  Ala.  210.  be  exempt  from  sale  under  legal  pro- 
^  N.  C.  10,  7.  cess.     In  Kansas  (15,  9),  a  homestead 

"  Col.  18,  1;    111.  4,  32;   Mon.  19,  4;  to  the  extent  of   160  acres  of  farming 
N.  D.  208;  S.  D.  21,  4;  Wash.  19,  1.  land,  or  one  acre  in  a  town  or  city, 
''  Cal.  17,  1;  Nev.  4,  30;  Wy.  19,  1.  occupied  as  a  residence  by  the  family 
'-  S.  C.  3,  28;  Tenn.  11,  11;   W.  Va.  of  the  owner,  with  all  improvements, 
6,  48.  be    so    exempt.     In    North    Carolina 
'^  Utah  22,  1.  (10,  2),  every  homestead  and  buildings 
"  Okla.  12,  2.  '  thereon,  to  be  selected  by  the  owner, 
*^  Thus,   in  Michigan  (16,   2),  every  or  in  lieu  thereof  a  town  lot  and  build- 
homestead,  if  not  exceeding  40  acres  ings  thereon,  owned  and  occupied  by  a 
of  land,  and  the  dwelling  house  thereon,  resident  of  the  State,  not  exceeding  in 
and  the  appurtenances  to  be  selected  value  SI, 000,  shall  be  so  exempt      In 
by  the  owner  thereof,  and  not  included  Virginia   (190),   every   householder  or 


156 


THE    STATE    CONSTITUTIONS 


[book   III 


§  83.  Exceptions.  —  The  liomestcad  exemption  does  not  avail 
as  against  any  mortgage  or  pledge  thereon,  lawfully  obtained;* 
or,  as  against  any  lien.- 

Nor,  against  any  obligation  or  debt  contracted  for  the  purchase 
of  the  premises  (or  property),-'  or  contracted  for  improvements 
thereon.*    Nor,  against  a  sale  for  taxes. ^    Nor  against  a  claim  for 


head  of  a  family  shall  be  entitled,  in 
addition  to  the  articles  now  exempt 
from  levy  or  distress  for  rent,  to  hold 
exempt  his  real  or  personal  property, 
or  either,  to  the  value  of  $2,000,  to  be 
selected  by  him. 

A  married  woman  is  entitled  to  a 
homestead,  her  husband  not  having 
Bufficient  property  to  constitute  one 
(S.  C).  In  Arkansas  (9,  3-5),  the 
homestead  of  a  resident  who  is  married 
or  the  head  of  a  family,  not  exceeding 
160  acres  of  land  outside  of  a  town, 
with  improvements  thereon,  nor  ex- 
ceeding in  value  $2,500,  but  not  less 
than  80  acres,  without  regard  to  value; 
or,  if  in  a  town,  not  exceeding  one  acre, 
nor  $2,500  in  value,  but  not  less  than 
one  quarter  acre,  is  exempt.  In  Texas 
(16,  50,  51),  the  homestead  of  a  family, 
200  acres  in  extent,  with  improvements, 
or,  in  a  town,  lots  to  the  value  of  $5,000, 
exclusive  of  improvements,  \^^th  the 
improvements  thereon  (provided  the 
same  be  used  for  the  purposes  of  a 
home,  or  as  a  place  of  business  of  the 
head  of  the  family),  is  exempt. 

In  Alabama  (205),  every  homestead 
not  exceeding  80  acres,  mth  improve- 
ments thereon,  to  be  selected  by  the 
owner,  or,  in  a  town,  any  lot  with 
improvements,  not  in  all  exceeding 
$2,000  in  value,  owned  and  occupied 
by  a  resident,  is  exempt.  In  Georgia 
(9,  1,  1;  9,  4,  1),  there  is  exempt  from 
levy  or  sale  of  the  property  of  every 
head  of  a  family,  or  guardian  or  trustee 
of  a  family  of  minor  children,  or  any 
aged  or  infirm  person,  or  person  having 
the  care  and  support  of  dependent 
females  of  any  age,  who  is  not  the 
head  of  a  family,  realty  or  personalty, 
or  both,  to  the  aggregate  value  of 
$1,600  besides  improvements  (and 
besides  this,  the  Constitution  recognizes 
a  species  of  homestead  previously 
existing  called  short  homestead.  In 
Florida   (10,   1),  a  homestead  to  the 


extent  of  100  acres  of  land,  or  lialf  an 
acre  in  a  town,  and  improvements 
thereon,  owned  by  the  head  of  a 
family  residing  in  the  State,  is  exempt. 
In  Louisiana  (24-1),  of  every  iiead  of  a 
family,  or  person  having  a  mother  or 
father,  or  person  or  persons  dependent 
on  him  for  support,  there  is  exempt 
the  homestead  bona  fide  owned  by  the 
debtor  and  occupied  by  him,  consist- 
ing of  lands,  buildings,  and  appurte- 
nances, whether  rural  or  urban;  also 
one  work-horse,  one  wagon,  one  yoke  of 
oxen,  two  cows  and  calves,  twenty-five 
head  of  hogs,  or  one  thousand  pounds 
of  bacon  or  its  equivalent  in  pork,  and 
on  a  farm  the  necessary  corn  and 
fodder  for  a  year,  and  farming  imple- 
ments to  the  value  of  $2,000;  if  the 
homestead  exceed  $2,000  in  value,  the 
beneficiary  is  entitled  to  that  amount 
in  case  a  sale  of  the  homestead  under 
legal  process  realize  more  than  that 
sum;  but  no  husband  is  entitled  to  a 
homestead  whose  wife  was  and  is  in  the 
actual  enjoyment  of  property  to  the 
value  of  $2,000.  In  Oklahoma  (12,  1) 
a  homestead  of  160  acres  in  the  country 
or  one  acre  in  a  city,  town,  or  village, 
not  over  $5000  in  value,  but  in  no  case 
less  than  one  quarter  acre. 

1  Ala.  205;  Fla.  10,  4;  Mich.  16,  2; 
Nev.  4,  30;  S.  C.  2,  28;  Va.  190. 

-  Ark.  9,  3;  Kan.  15,  9;  N.  D.;  Nev. 

^  Ark. ;  Fla.  10,  1 ;  Ga.  9,  2,  1 ;  Kan. ; 
La.  245  ;  N.  C.  10,  2 ;  Nev. ;  Okla. ;  S. 
C.  2,28;  Tenn.  11,  11;  Tex.;  Va.;  W. 
Va.  6,  48 ;  Wy.  19. 

*  Fla.,  Ga.,  Kan.,  La.,  N.  D.,  Nev., 
Okla.,  S.  C,  Tenn.,  Tex.  (such  claims 
for  work  or  materials  used  in  improve- 
ments must  be  evidenced  by  written 
contract  for  with  the  consent  of  the 
wife  given  as  in  a  deed  of  the  home- 
stead.)    W.  Va.,  Wy. 

^  Ark.,  Fla.,  Ga.,  Kan.,  La.,  N.,  C, 
Nev.,  Okla.,  S.  C,  Tenn.,  Tex.,  Va., 
W.  Va.,  Wy. 


PART    l]  BILL    OF   EIGHTS  :   CIVIL  157 

services  thereon  by  a  laboring  person  or  mechanic/  or  against 
laborers'  or  mechanics'  liens  thereon,^  or  against  a  debt  incurred 
by  a  public  officer,  fiduciary  or  attorney-at-law  as  such,'  or  trustee 
of  an  express  trust.*  Nor  against  a  claim  for  rent,  or  for  the 
lesral  fees  of  an  officer,^  or  a  debt  for  the  removal  of  incumbrances 
thereon.^ 

"The  yearly  products  of  the  homestead  are  not  exempt  as  against 
obligations  contracted  in  the  production  of  the  same."  ^ 

§  84.  Alienation.  —  A  homestead  cannot  be  alienated  or  mort- 
gaged without  the  joint  consent  of  husband  and  wife.^  An  instru- 
ment of  waiver  of  homestead  rights,  besides  being  so  signed,  must 
be  attested  by  one  witness.®  In  Texas  no  mortgage,  trust-deed,  or 
other  lien  on  the  homestead  is  ever  valid,  except  for  the  purchase- 
money  therefor  or  improvements  thereon,  as  in  §  S3,  whether  such 
mortgage,  etc.,  is  created  by  the  husband  alone  or  together  with 
his  wife;  and  all  pretended  sales  of  the  homestead  involving  any 
condition  of  defeasance  are  void.'" 

All  homestead  rights  may  be  waived  by  the  debtor  in  writing 
except  S300  worth  of  household  furniture  and  provisions,  and 
wearing  apparel." 

No  temporary  renting  shall  change  the  character  of  a  homestead, 
no  other  homestead  having  been  acquired.'" 

§  85.  Recording.  —  The  Constitution  of  Nevada  pro\ades  that 
laws  shall  be  enacted  requiring  homesteads  to  be  recorded.  '^ 

§  86.  Duration.  —  In  some  States  the  homestead  estate  continues 
exempt  from  the  owner's  debts  after  his  death,  during  the  minority 
of  any  of  his  children."  In  others,  during  the  life  and  widowhood 
of  his  widow,  unless  she  be  the  owner  of  a  homestead  in  her  own 
right. '^  So,  it  is  provided  in  general  terms  that  it  shall  inure  to  the 
benefit  of  the  widow. '^  So  it  would  seem  to  be  implied  in  Texas, 
where  the  Constitution  provides  "that  on  the  death  of  the  husband, 
wife,  or  both,  the  homestead  descends  and  vests  like  other  real 

*  Fla.,  La.,  Va.  "  Ala.  210. 

2  Ala.  207 ;  Ark. ;  Ga. ;  N.  C.  10,  4.       »"  Tex.  16,  50.     These  are  surprising 
'  Ark.,  La.,  Va.  innovations. 

*  Ark.  11  Ga.  9,  3,  1. 

*  Va.  »2  Tex.  16,  51 ;  Okla.  12,  2. 
«  Ga.  "  Nev.  4,  30. 

'  S,  C.  "  Ala.  206;  Ark.  9,  6,  10;  La.  244; 

«  Ala. ;  Fla.  10,  1 ;   Kan.  15,  9 ;  La.  Mich.  16,  3 ;    N.  C.  10,  3     Tenn. ;    W. 
246;    Mich.  16,  2;    N.  C.  10,  8;    Nev.  Va.  6,  48. 
4,  30;  Okla.,  12,  2;  S.  C.  2,  28;  Tenn. ;       '^  Mich.  16,  4 ;  N  C.  10,  5. 
Tex.;  Wy.  "  Ala.    208;  Fla.  10,  2;   La  ;   Tenn. 


158  THE   STATE    CONSTITUTIONS  [BOOK    III 

property  of  the  deceased,  and  shall  he  governed  hy  the  same  laws 
of  descent  and  distribution,  Jnit  shall  not  he  partitioned  among 
the  heirs  of  the  deceased  during  the  lifetime  of  the  hushand  or 
widow,  or  so  long  as  he  or  she  occupy  or  use  the  same  as  a  home- 
stead, or  the  guardian  of  minor  children  be  permitted  so  to  do  by 
order  of  court."  '  So,  in  Arkansas,  during  her  natural  life  (whether 
she  marry  or  not),  unless  she  be  the  owner  of  a  homestead  in  her 
own  right.  In  Florida  the  homestead  exemption  iimres  to  the 
widow  and  heirs  of  the  party  enjoying  it.^ 

§  87.  Stay  Laws.  —  By  the  Constitution  of  Virginia  no  law 
staying  the  collection  of  debts  can  be  passed.^ 

§  88.  Garnishment.  —  By  the  Constitution  of  Texas  no  current 
wages  for  personal  service  shall  ever  be  subject  to  garnishment/ 

Article  9.     Eminent  Domain,^ 

§  90.  General  Principles.  —  In  two  States  private  property  is 
expressly  declared  by  the  Constitution  to  be  inviolate. °  But,  in 
four,  subservient  to  public  welfare  when  necessity  demands  it.^ 

But  it  cannot  be  taken  by  law  ^  without  just  compensation  being 
made.*^ 

§  91.  Taking  for  Public  Use. — The  Constitutions  of  many 
States  prescribe  specially  that  no  man's  property  shall  be  taken, ^" 
damaged,  or  destroyed  for  public  use  "  without  just  compensation 
being  made,^^  or  not  without  the  owner's  consent  or  just  compensa- 

*  Tex.  16,  52.  only  specify  property  "taken,"  not 
"  Fla.  10,  2.  merely  damaged,  but  the  distinction 
^  Va.  194.  should  be  unimportant.    Property  dam- 

*  Tex.  16,  28.  aged    is    property    "taken"    in    part, 

*  See  also  section  15  for  the  general  though  not  destroyed.  "Taken  or  ap- 
principle.    The  principles  of  this  arti-    plied"  (Del.). 

cle  are  covered  repeatedly  in  Magna  "  /.  e.,  by  the  State  or  by  a  munici- 
Carta.  Kansas  and  North  Carolina  pal  corporation,  or,  perhaps  by  a  quasi- 
alone  have  no  constitutional  provi-  public  corporation.  In  some  States 
sions  covering  tliis  article,  which  has  the  words  "public  use"  extend,  by  the 
doubtless  had  its  effect  in  the  hberal  context,  to  takings  by  a  private  cor- 
opinions  of  Kansas  courts  upon  laws  poration  for  a  public  use  (N.  J.,  111., 
destroying  property  rights,  Wy.,  Wash.). 

•5  Ark.  2,  22;  O,  1,  19.  '"  Ala.  23;  Ark.  2,22;  Ariz.  *B.  Rts. 

'  Mass,  1.  10;    Me.  1,  21;    O. ;  Vt.  14;   Cal.  1,  14;    Col.  2,  15;   Ct.  1,  11; 

1.2,    Seeabo§92.  Fla.  16,  29;    Ga.  1,  3,  1;    Ida.  1,  14; 

^  /.  e.  either  for  public  or  private  111.  2,  13;    Ind.  1,  21;    lo.  1,  18;    Ky. 

use;  compare  §§  91-93.  242;  La.  167;   Mass.  1,  10;  Me.  1,  21; 

»  Fla.  Decln.  Rts.  12;    16,  29;    Ind.  Mich.  18,  14;  Minn.  1,  13;  Amt.  1895, 

1,21;  Mass.;  N.  M.*  95,  1.  5;  Miss.  17;  Mo.  2,  21;  Mon.  3,  14 ;N. 

1"  The  U.S.  Amt.  5  and  many  States  D.  14;  Neb.  1,  21;  Nev.  1,  8;  N.  J., 


PART    l]  BILL   OF   KIGIITS  :    CIVIL  159 

tion/  or  the  consent  of  the  owner's  representatives  (i  c,  the  legis- 
lature) and  just  compensation,'  or  his  own  consent  or  that  of  the 
representative  body  of  the  people.^ 

But  reservoirs,  storage-basins,  irrigation  canals,  ditches,  flumes, 
and  pipes  for  water  drainage,  or  mining  purposes,  working  mines, 
as  dumps,  hoists,  shafts,  tunnels,  etc.,  are  declared  a  public  use 
in  the  arid  States.*  So,  as  to  water  only,^  or  "any  other  use 
necessary  for  the  complete  development  of  the  material  resources 
of  the  State  or  the  preservation  of  the  health  of  its  inhabitants."  ^ 

§  92.  Taking  by  Private  Parties.''  —  Private  property  cannot 
constitutionally  be  taken  for  private  use,  or  the  use  of  corporations 
other  than  municipal,  without  the  consent  of  the  owner,  except  as 
below.  ^ 

But  land  may  be  taken  by  private  parties  in  a  manner  provided 
by  law  for  ways  of  necessity/  for  drains  across  another's  land,^°  for 
flumes  and  aqueducts  across  another's  land.^^  In  a  few,  lands  may 
be  taken  by  private  persons  or  corporations,  for  a  public  way.^^  or 
for  works  of  internal  improvement  generally.  ^^ 

But  the  Constitution  declares  that  no  man's  property  can  be  taken 
for  such  private  use  ^*  without  just  compensation.^^ 

No  right  of  way  shall  be  appropriated  to  the  use  of  a  corporation 

(other  than  municipal)  until  full  compensation  is  paid  or  secured 

in  money.  ^^ 

1,  16;  4,  7,  8;  N.  Y.  1,  7;  O.   1,  19;  Okla.  2,  23;  S.  C.  1,  17;  Wash.  1,  16; 

Okla.  2,  24;  Ore.  1,  18;  R.  I.  1    16;  S.  Wy.  1,  32. 

C.  1,  17;  S.  D.  6,  13,  17,  18;  Utah  1,  «  Ala.;  Col;  Ga. ;  111.  4,  CO;  Mich. 

22;  Va.  58;  Vt.    1,   2;  Wash.    1,   16;  18,  14;    Miss.  110;    Mo.;  Mon. ;  N.  J. 

W.  Va.  3,  9;  Wis.  1,   13;  Wy.   1,  33.  1,  16;  N.  Y.  1,7;  Okla.;  Wash.;  Wy. 

See  also  §  90.      Or,  in  several  States,  "  Col.  16,    7;    Ida.  1,  14;  111.  4,  31; 

"secured  to  be  made."  (lo.,  Me.,  Nev.,  Mo. ;  Mon.  3,  15 ;  N.  Y. ;  Okla. ;  Wash. ; 

Pa.,  Minn.,  Wash.)  Wy. 

1  Md.  3,  40;   N.  M.*  1851,  July  12,  "Col.;     Ida.;     Wash.;     Wy.      See 

§14;  Tex.   1,    17.     These  distinctions  also  §§  91,  418. 

would  appear  unnecessary.  *-  Ala.;     Ark.    12,    9;     Cal.    1,    1±; 

-  Del.  1,  8;  Pa.  1,  10;  Tenn.  1,  21.  Minn.  10,  4;  N.  J. 

3  Mass. ;  N.  H.  1,  12 ;  Vt.  1,  9.  ''  W.  Va.  3,  9. 

•*  Ida. ;   Wy.  "  This    is    probably   law    in    many 

^  Mon.  3,  15.    See  §  418.  other  States,  as  included  in  the  provi- 

*  Ida.  sions  of  §  91.     See  §  91,  notes. 

^  In    States    having   no    provisions  ^*  Ala.;  Ark.;  Col.  2,  15;  16,  7;  Fla. 

under  this  section,  the  right  of  eminent  16,  29  ;    Ga.  1,  3,  1 ;    Ky.  242  ;    Mich. ; 

domain   can   probably   only   be   exer-  Minn.;  Mo.  2,  21 ;  N.J.  4,  7,  8;  N.  Y. ; 

cised  under  Sections  90,  91;  and   land  O.  1,  19;  Okla.;  Pa.  16,  8;  Wash.;  W. 

can  never  be  taken  for  private  use.  Va. ;  Wy. 

(See  Mo.  2,  21.)  »«  Cah ;  Fla.;   Kan.  12,  4 ;  N.  D.  14; 

»  Ala.  1,  23;  Col.  2,  14;  Mo.  2,  20;  Nev.  8,  7;  O.  13,  5;  S.  C.  9,  20;  Wash. 

1,  16. 


160  THE   STATE   CONSTITUTIONS  [BOOK   III 

In  Alabama,  that  the  right  of  eminent  domain  shall  not  be  so 
construed  as  to  allow  taxation  or  foreed  subscription  for  the  benefit 
of  railroatis  or  any  corporations,  except  municipal. 

The  fee  of  land  taken  for  railroad  tracks  without  the  consent  of 
the  owners  remains  in  them  subject  to  the  use  for  which  it  is  taken.* 

§  93.  Compensation.  —  The  compensation  must,  in  most  States, 
always  be  paid  -  before  ^  the  taking.*  So,  when  the  taking  is  for 
public  improvements  in  towns.^  But  not  in  some  States,  when  the 
taking  is  by  the  State.®  Nor  when  the  taking  is  by  a  municipal 
corporation.^  Until  the  compensation  is  paid,  as  above,  the  rights 
of  the  owner  are  not,  in  two  States,  divested.^ 

§  94.  Junj  Trial.  —  The  amount  of  compensation  for  property 
so  taken  must  be  determined  by  a  jury,  either  in  cases  of  taking 
by  the  State,*  or  by  public  or  municipal  corporations,'"  or  in  cases 
of  taking  by  private  parties  or  corporations,  under  §  92,"  or,  when 
any  corporation  is  interested  for  or  against  the  right  of  taking.  '^ 

In  Wisconsin,  the  necessity  of  the  taking  must  also  be  ascertained 
by  a  jury  in  cases  of  taking  by  municipal  corporations  against  the 
owner's  consent.'^    And  so,  in  Michigan,  in  all  cases  where  a  jury 

1  111.  2,  13;  Mo.;  Okla.  2,  23;  S.  D.  Col.,  Mo.,  Okla.     On  the  appeal  from 

6,  13.    Or  highways;  S.  D.    See  §  519.  preliminary  assessment:  Ala.    Always 

^  "Except  in  cases  of  war,  riot,  fire,  by  a  jury  when  required  by  the  owner; 

or  public  peril,  or,  in  Ohio,  making  or  not,  as  above,  by  the  commissioners  : 

repairing  public  roads"  (O.,  Nev.).    Or,  Col.    Except  when  agreed  upon  by  the 

in  some  States,  secured  to  be  paid  by  parties  (this  would  seem  to  follow  in  all 

a  deposit  in  money  or  bond;  see  §  91,  States).     Md.,  N.  D. 

note   1.      (lo.,   Mich.,   O.,   Pa.,    Kan.,  '"Ala.;    Col.;    111.   2,  13,  20;   Ky. ; 

W.  Va.,  Ark.,  Tex.,  Ore.,  Nev.,  S.  C.)  Md. ;  Mich.  15,  15;   18,  2;  Mo.;  N.  Y. 

3  Except,   in   some  States,  by   the  1,  7;  O. ;  Okla.;  S.  D.   On  the  appeal 

owner's  consent.     [Tliis  would  seem  to  from  preliminary  assessment:  Ala.,  Ky. 

follow    in    all    States,    from    general  Or  by  commissioners:  Col.,  Mo.,N.  Y. 

principles.]  Always  by  a  jury  when  required  by 

*  Ala.  23;  235;  Ark.  12,  9;  Cal.  1,  the  owner;  not,  as  above,  by  com- 
14;  Fla.  16,  29;  Ga. ;  Ida.;  Ind.  1,21;  missioners:  Col.  Except  when  agreed 
lo. ;  Kan.  12,  4;  Ky.  242;  La.;  Md. ;  upon  by  the  parties:  Md.,  Okla. 
Mich.  15,9;  Minn.;  Miss.  17;  Mon. ;  "  Ark.,  Ala.,  Cal,  Col.,  111.,  lo., 
N.  D.  14;  Nev.  1,  8;  N.  J.  4,  7,  8;  O.  1,  Fla.,  Ky.,  Mich.,  Md.,  Mo.,  N.  Y.,  O., 
19;  Okla.  2,  23;  Ore.  1,  19;  11,  4;  Pa.  Okla.,  N.  D.,  S.  C,  W.  V.,  Wash.  On 
16,  8;  S.  C.  1,  17;  S.  D.  6,  13;  17,  18;  the  appeal  from  preliminary  assess- 
Tex. ;  Wash.;  W.  Va.  ment  Ala.,  Ky.;  Ark.  12,  9.     Always 

*  Mich.  15,  5 ;  Pa.  by  a  jury  when  required  by  the  owner; 

*  Cal.;  Ind.;  Mich.;  N.  J.  1,  16;  not,  as  above,  by  commissioners:  Col, 
Ore.  1,  IS;  Tex.;  W.  Va.  On  the  appeal  from  preliminary  assess- 

'  Cal. ;  N.  J. ;  Wash.  1,  16;  W.  Va.  ment  :  Ala.,  Ky.,  Okla.    Or  by  commis- 

«  Col.  2,  15;  Mo.  2,  21.  sioners:  Col.,  N.  Y.,  Mo. 
»  N.  D.  14 ;  Id.  1,  18 ;  Col.  3,  4  ;  Md. ;        '^  111.  11,  14 ;  Mo.  12,  4. 

O. ;  Okla.  2,  24 ;  Mo. ;  Ala. ;  S.  D.  Or        "  Wis.  11,  2. 

by  commissioners   appointed   by  law: 


PART   l]  BILL   OF   RIGHTS  :    CIVIL  161 

trial  is  required  by  the  Constitution.  So,  in  others,  in  opening 
private  roads.  ^ 

The  question  whether  the  use  alleged  to  be  public  is  really  so 
must  be  determined  by  the  court,  any  legislation  asserting  it  to  be 
public  notwithstanding.^ 

§  95.  The  Amount  of  Compensation  must  be  determined  with- 
out any  reference  to  any  benefit  that  may  be  conferred  by  better- 
ment or  otherwise,  in  some  States,  in  cases  of  taking  of  rights  of 
way  by  a  private  corporation,^  or  in  all  cases  of  taking  for  public 
use,*  or  in  cases  of  taking  by  a  municipal  corporation.^ 

§  90.  Appeal  from  the  preliminary  assessment  of  damage  [i.  e., 
by  commissioners]  can,  in  some  States,  never  be  denied  in  the  case 
of  taking  by  corporations;  and  on  such  appeal  the  amount  must 
be  determined  by  a  jury.® 

§  97.  The  Exercise  of  the  Right  against  Franchises.  —  The 
right  of  eminent  domain  shall  never  be  so  construed  as  to  prevent 
the  legislature  from  taking  the  property  or  franchises  of  incorpo- 
rated companies  and  subjecting  them  to  public  use  the  same  as 
that  of  individuals.^ 


Article  10.     Citizens  and  Aliens.    Language,  etc. 

§  100.  Who  are  Citizens.^  —  All  citizens  of  the  United  States 
resident  in  the  State  are,  by  the  Constitution,  declared  citizens  of  the 
State.'*    (For  §  101,  Forfeiture  of  citizenship  by  absence,  see  Art.  24.) 

§  102.     Alien's  Rights.^^     In  two  States  the  Constitution  provides 

»  Mon.,  N.  Y.  6 ;  Pa.  16,  3  ;  S.  D.  17,  4 ;  Utah  12,  11 ; 

-  Col.;  Miss.  17;  Mo.  2,  20;  Okla.  Wash.   12,   10;    W.  Va.   11,   12;    Wy. 
2,  23;  Wash.     An  excellent  legislative  10,  9;   10,  10  (4).     See  §  504. 
recognition   of  its  boundaries   on  the        *  Founded  on  U.   S.  Amts.    14,    1, 
judicial  power.  and  consequently  true  in  all  States ;  see 

^  Ark.  12,  9 ;  Cal.  1,  14  ;  Fla.  16,  29 ;  also  Aiticle  24. 
Kan.   12,  4;  N.  D.   14;    O.   13,  5;    1,        «  Ala.  2;    Ga.    1,   1,  25;    Miss.  8; 
19;   S.  C.  9,  20;  S.  D.  6,   13;  Wash.  Vt.   Amt.    1;     W.    Va.   2,   3.      So,   in 
1,   16.  Alabama,  all  persons  who  have  duly 

*  lo.  1,  IS;  O.  1,  19;  S.  D.  1,  16.       declared    their    intention    to    become 

*  Kan.  citizens  of  the  United  States.     But  in 
«  Ala.   159 ;  Ky.  242 ;  Okla.  2,  23 ;  Vermont  there  is  an  oath  of  allegiance 

Pa.  16,8;  S.  D.  17,  18;  see  §  94.  required     from     persons     wishing     to 

^  Ala.  1,  23;  Ark.  17,  9;  Cal.  12,  8;  become  freemen  (Vt.  2,  21). 
Col.  15,  8:   Ga.  4,  2,  2;    Ida.  8;  111.  11,       ^°  For  tax  laws,  see  §  334.     By  the 
14;    Ky.  195;    Miss.  190;    Mo.  12,  4;  Act  of  Settlement  of  WiUiam  III.  no 
Mon.  11,  8;   15,  9;  N.  D.  134;  Neb.  11,  person  born  out  of  English  dominions 

u 


102  THE   STATK    CONSTITUTIONS  [BOOK   III 

that  no  distinction  whatever  can  he  made  hetween  citizens  and  ahens 
with  resjK'ct  to  the  possession,  enjoyment,  or  dtscent  of  property, 
real  or  personal.'  Or,  in  others,  between  citizens  and  aliens  bo)m 
fide  resident  in  the  State.*  But  in  others,  this  applies  only  as  to 
mining  property.^ 

In  ^\>rmont,  persons  of  good  character  who  have  come  to  settle 
in  the  State,  having  first  made  oath  of  allegiance  to  the  same,  may 
take,  hold,  and  transfer  real  estate.' 

But  in  others,  the  legislature  shall  enact  laws  limiting  the  number 
of  acres  of  land  which  any  alien  or  corporation  controlled  by  aliens 
may  own  within  the  State. ^ 

And  in  Washington,  the  ownership  of  lands  by  alieng,  other  than 
those  who  in  good  faith  have  declared  their  intention  to  become 
citizens  of  the  United  States,  is  prohibited,  except  where  acquired 
by  inheritance,  under  mortgage,  or  in  good  faith  in  the  ordinary 
course  of  justice  in  the  collection  of  debts;  and  all  conveyances 
of  lands  hereafter  made  to  any  alien  directly,  or  in  trust  for  such 
alien,  shall  be  void.  Every  corporation,  the  majority  of  the  capital 
stock  of  which  is  owned  by  aliens,  shall  be  considered  an  alien  for 
the  purpose  of  this  prohibition.®  This  does  not  apply  to  mining 
lands  or  property. 

In  Oklahoma,^  no  alien  or  person  not  a  United  States  citizen 
may  take  or  own  land,  and  if  acquired  by  devise,  descent,  etc., 
he  must  sell  within  five  years;  but  this  does  not  apply  to  Indians 
nor  to  aliens  who  are  bona  fide  residents,  nor  to  lands  now  owned 
by  ahens. 

§  103.  Language.  By  the  Constitutions  of  four  States,  the  laws, 
public  records,  and  written  legislative  and  judicial  proceedings  shall 
be  conducted,  promulgated,  and  preserved  in  the  English  language 
(only).^    So,  in  Oklahoma,  schools  must  be  taught  in  English  only.^ 

although  naturalized,  except  such  as  And  see  §  22);    Col,  2,  27;    lo.  1,  22; 

are  born  of  English  parents  could  be  a  Mich.  18,  13;   Mon.  3,  25;   Neb.  1,  25; 

member  of  the  House  of  Parliament  or  Nev.  1,  16;    Ore.  1,  31;    S.  D.  6,  14; 

enjoy  any  office,  civil  or  militarj^  or  W.  Va.  2,  5;  Wis.  1,  15;  Wy.  1,29. 

have  any  granted  land  from  the  Crown.        ^  Mon.  3,  25 ;  Wash.  2,  33. 

This  was  only  repealed  by  7  &  8  Vict.         *  Vt.  2,  39. 

c.  66.  '  Miss.  84 ;   S.  C.  3,  35. 

1  Fla.  D.  Rts.  18;  Kan.  B.  Rts.  17.         «  Wash.  2,  33. 

2  Ala.  1,  34;  Ark.  2,  20;  Cal.  1,  17;        ^  Okla.  22,  1. 

Amt.    1893,  p.   624;     (Except  that  in        »  Cal.  4,24;  111.  Sched.  18;  La.  165; 

California  a  distinction  may  be  made  Mich.  18,  6. 
against  such  aliens  as  are  not  eligible        *  Okla.  1,  5. 
to    become     United    States    citizens. 


PART   l]  BILL   OF   RIGHTS:    CIVIL  163 

In  Colorado,  laws  are  also  to  be  published  in  Spanish  and  German.* 
And  in  Louisiana,  the  legislature  may  provide  for  the  publication  of 
laws  in  the  French  language,  and  that  judicial  advertisements,  in 
certain  designated  districts,  may  be  made  in  French.  So,  in  INIissouri, 
certain  characters,  etc.,  in  the  German  language.^  So,  in  Maryland, 
proposed  amendments  to  the  Constitution,  in  German.^ 

1  Col.  18,  8.  2  Mo.  9,  16.  3  Md.  14,  1. 


lG-4  THE   STATE   CONSTITUTIONS  [BOOK   III 


CHAPTER   11 

BILL    OF   RIGHTS:    CRIMINAL 

Article  12.     Rights  Before  Trial 

§  120.  To  Hear  Accusation^  By  the  Constitutions  of  nearly 
all  the  States,  persons  accused  of  crime  have  the  right  to  hear  the 
nature  and  cause  of  the  accusation.-  And  in  many  they  are  to  have 
a  copy  of  the  accusation  furnished  them.'*  In  Georgia,  also,  to 
have  a  list  of  the  witnesses  on  whose  testimony  the  charge  is 
founded.* 

§  121.  Bailable  Offences.  The  Constitutions  of  most  of  the 
states  provide  that  all  persons  shall,  before  conviction,  be  admitted 
to  bail,  upon  giving  sufficient  sureties,  except  (where  proof  of  their 
guilt  is  evident  or  the  presumption  great)  for  capital  offences.^  Or 
for  murder  and  treason,^  or  offences  punishable  with  death  or  im- 

•  The  wording  of  the  text  is  that  N.  M.  *  50,  7;  95,  1;  O.  1,  10;  Okla. 
of  the  Virginia  Bill  of  Rights,  and  1,20;  Ore.  1,11;  Pa.  1,9;  R.I.  1,10; 
would  apparently  give  the  right  to  any  S.  C.  1,  18;  S.  D.  6,  7;  Tenn.  1,  9; 
person  arrested  and  accused  before  Tex.  1,  10;  Utah  1,  12;  Va.  1,  8;  Vt. 
trial  or  indictment.  U.  S.  Amt.  6  1,10;  Wash.  1,22;  W.  Va.  3,  14 ;  Wis. 
confines  this  right  to  criminal  prosecu-   1,  7;  Wy.  1,  10. 

tions.     The  former  doctrine  is  pref  era-         ^  Ala. ;     Ark.;     Ga.    1,    1,   5;     111 
ble,  and  the  principle  is  an  old  one,    Ind. ;     lo. ;    Md. ;    Me. ;     Mon. ;   Neb 
asserted  by  Coke  in  1615,  and  probably  O. ;  Okla. ;   Ore. ;   S.  D. ;  Tenn. ;   Tex 
independent    of   the   right    to    habeas  Utah ;  Wash. ;  Wy.     Or  of  the  indict- 
corpus:   see  §  125.  ment  (Fla.). 

''No  man  could  be  committed  to  *  Compare  §  135. 
prison  but  by  a  le^gal  warrant  specify-  ^  Ala.  1,  16;  Ariz.*  Bill  of  Rts.  11 
ing  his  offence ;  and  by  an  usage  nearly  Ark.  2,8;  Cal.  1,6;  Col.  2,  19 ;  Ct.  1 
tantamount  to  constitutional  right,  14;  Del.  1,  12;  Fla.  Decln.  of  Rts.  9 
he  must  be  speedily  brought  to  trial  Ida.  1,  6;  111.  2,  7;  lo.  1,  12;  Kan 
by  means  of  regular  sessions  of  gaol  Bill  of  Rts.  9 ;  Ky.  16 ;  La.  12 ;  Me 
delivery."  (Taswell-Langmead,  p.  294.)    1,  10 ;  Minn.  1,7;  Miss.  29 ;  Mo.  2,  24 


2  Ala.  1,  6;  Ark.  2,  10;  Col.  2,  16 
Ct.  1,  9;  Del.  1,  7;  Fla.  Decln.  Rts 
11;  111.  2,  9;  Ind.  1,  13;  lo.  1,  10 
Kan.  Bill  of  Rts.  10;  Ky.  11;  La.  10 
Mass.  1,  12;  Md.  Decln.  Rts.  21;  Me 
1,6;  Mich.  6,28;  Minn.  1,6;  Miss.  26 
Mo.  2,  22;  Mon.  3,  16;  N.  C.  1,  11 
Neb.  1,  11;    N.  H.  1,  15;   N.  J.  1,  8 


Mon.  3,  19;  N.  D.  6;  Nev.  1,  7;  N.  J 
1,  10 ;  N.  M.*  95,  1 ;  1851,  July  12,  §  9 
O.  1,  9 ;  Okla.  2  8 ;  Pa.  1,  14 ;  S.  C.  1,  20 
S.  D.  6,  8;  Tenn.  1,  15;  Tex.  1,  11 
Utah  1,  8;  Vt.  2,  33;  Wash.  1,  20 
Wis.  1,  8;  Wy.  1,  14. 

6  Ind.  1,  17 ;  Mich.  6,  29 ;  Neb.  1,  9 ; 
Ore.  1,  14. 


PART    l] 


BILL   OF   lUGIITS  :     CKIMIXAL 


165 


prisonment  for  life.'  And  so,  ajtcr  conviction,  except  for  capital  or 
infamous  offences  in  Louisiana. 

§  122.  Excessive  Bail?  The  Constitutions  of  all  the  States 
except  Illinois  provide  that  excessive  bail  shall  not  be  required.^ 

§  123.  Imprisonment  of  Parties  Accused.  In  a  few  States  the 
Constitution  provides  that  no  person  arrested  shall  be  treated  with 
unnecessary  rigor.* 

§  124.  Witnesses.  In  several  States  the  Constitution  provides 
that  witnesses  shall  not  be  unreasonably  detained ; '"  or  that  they 
shall  not  be  imprisoned  longer  than  may  be  necessary  for  securing 
their  depositions;  and  thereafter  shall  be  discharged  on  their  own 
recognizance.**  Depositions  so  obtained  may  be  used  at  the  trial 
if  the  witness  is  dead  or  absent  from  the  State.  ^  They  shall 
not  be  confined  in  any  room  where  individuals  are  actually 
imprisoned.^     Cf.   §   135. 

Contempts  and  their  punishment  are  regulated  by  the  Consti- 
tution in  Oklahoma  and  two  other  States.     See  §  662. 


'  R.  I.  1,  9. 

-  Compare  Eng.  Stat.  1  W.  &  M. 
Sess.  2 ;  U.  S.  Amt.  8.  Excessive  bail 
was  one  of  the  abuses  complained  of  in 
the  Bill  of  Rights,  and  a  usual  method 
under  the  Stuarts  of  evading  the 
habeas  corpus.  The  right  to  bail  was 
granted  under  the  writ  de  odio  et  atia 
even  before  Magna  Carta  and  was  the 
means  by  which  a  person  imprisoned 
on  a  charge  of  homicide  could  get 
released  on  bail  to  await  the  Iter  of 
the  King's  Justices. 

3  Ala.  1,  16;  Ariz.*  Bill  of  Rts.  10 
Ark.  2,  9;  Cal.  1,  6;  Col.  2,  20;  Ct.  1 
13;  Del.  1,  11 ;  Fla.  Decln.  of  Rts.  8 
Ga.  1,  1,  9;  Ida.  1,  6;  Ind.  1,  16;  lo 
1,  17;  Kan.  Bill  of  Rts.  9;  Ky.  17 
La.  12;  Mass.  1,  26;  Md.  Decln.  of 
Rts.  25;  Me.  1,  9;  Mich.  6,  31 ;  Minn. 
1,  5 ;  Miss.  29 ;  Mo.  2,  25 ;  Mon.  3,  20 ; 
N.  C.  1,  14;  N.  D.  6;  Neb.  1,  9;  Nev. 
1,  6;  N.  H.  1,  .33;  N.  J.  1,  15;  N.  M.* 
95,1;  1851,  July  12,  §  11;  N.Y.  1,5; 
O.  1,  9;  Okla.  2,  9;  Ore.  1,  16;  Pa.  1, 
13;  R.  I.  1,  8;  S.  C.  1,  19;  S.  D.  6, 
23;  Tenn.  1,  16;  Tex.  1,  13;  Utah  1, 
9;  Va.  1,  9;  Vt.  2,  33;  Wash.  1,  14; 
W.  Va.  3,  5;  Wis.  1,  6;  Wy.  1,  14. 

*  Ariz.*  4,  28;  Ga.  1,  1,  9;  Ind.l, 
15;  Ore.  1,  13;  Tenn.  1,  13;  Utah  1, 
9;    Wy.   1,   16.     Compare  §   140.     So 


the  Constitution  of  Rhode  Island 
declares  that  every  man  is  presumed 
innocent  until  proved  guilty  by  the 
law;  and  consequently  no  act  of 
severity  not  necessary  to  secure  the 
accused  should  be  permitted.  (R.  I. 
1,  14.)  And  in  Delaware  their  friends 
and  counsel  must  be  allowed  access  to 
the  accused.  (Del.  1,  12.)  "Theo- 
retically torture  was  never  part  of 
the  law  of  England  "  (Taylor  II.  166), 
but  was  employed  under  Ehzabeth  and 
Henry  VIII.  to  extort  confessions  from 
Roman  CathoUcs  by  authority  of  the 
Privy  Council.  Coke  says  the  rack 
was  introduced  by  the  Duke  of  Exeter 
under  Henry  VI.  and  adds:  "There  is 
no  law  to  warrant  tortures  in  this  land, 
nor  can  they  be  justified  by  any  pre- 
scription, being  so  lately  brought  in, 
and  it  was  declined  by  the  judges  in 
the  trial  of  Felton,  the  murderer  of 
the  Duke  of  Buckingham.  (Taswell- 
Langmead,  p.  360.) 

5  Ariz.*  Bill  of  Rts.  10 ;  Ark.  2,  9 ; 
Cal.  1,  6;  Fla.  Decln.  of  Rts.  8;  Mich. 
6,31;  N.  D.  6;  Nev.  1,6;  N.Y.  1,5; 
S.  C.  1,  19. 

«  Col.  2,  17;  Cal.;  Mon.  3, 17;  Wy. 
1,  12. 

'  Mon. 

«  Cal,  N.  D.,  Wy. 


166  THE   STATE   CONSTITUTIONS  [bOOK    III 

§  125.  Habeas  Corpus.^  Three  State  Constitutions  declare 
the  writ  of  habeas  corpus  a  writ  of  right.-  Two  others  declare  that 
the  \\Tit  or  remedy  ouglit  not  to  be  denied  or  delayed.^ 

In  others,  the  legislature  are  to  enact  laws  to  render  the  remedy 
speedy  and  effectual.'  Or  the  privilege  of  the  writ  is  to  be  enjoyed 
in  the  most  easy,  cheap,  expeditious  and  ample  manner.^ 

So,  North  Carolina  declares  that  every  person  restrained  of  his 
liberty  is  entitled  to  a  remedy  to  inquire  into  the  lawfulness  thereof, 
and  to  remove  the  same  if  unlawful." 

§  126.  Suspension  of  Habeas  Corpus.''  By  the  Constitutions  of 
most  States,  the  writ  can  only  be  suspended  where,  in  cases  of 

*  The    right    to    habeas    corpus    is  383.)    The  Constitution  of  the  United 
contained  in  Magna  Carta,  C.  39.     Its  States,  Art.  1,  §  9  (2)  providing  that 
predecessor  was  known  as  the  writ  de  the    privilege   of   the    writ   of    habeas 
odio  et  alia,  which,  however,  was  not  corpus    shall    not    be    suspended,  etc., 
granted    as    of    right    and    was    often  only  applies  to  action  by  the  Federal 
refused  except  for  a  money  payment.  Government.     (See  §  126.) 
Five  centuries  of  effort  to  evade  this        ^  Fla.  Decln.  of  Rts.  7;   Tex.  1,  12; 
writ,  the  great  guaranty  of  personal  Vt.  Amt.  12. 
liberty,  ended  in  the  Habeas  Corpus        *  lo.  1,  13;  N.  C.  1,  18. 
Act  of  Charles  II.  wliich  applies  to  any        *  Tex.,  Vt. 

person   committed  and   charged   with        *  Fla. ;  Mass.  2,  6,  7 ;  N.  H.  2,  90. 
crime  and  requires  any  judge  at  any        *  N.  C.  1,  18. 

time  to  issue  the  writ,  returnable  ^  Derived  from  U.  S.  C.  1,  9  (2). 
immediately,  and  within  two  days  to  "The  privilege  of  the  writ  of  habeas 
discharge  the  prisoner  if  bailable,  corpus  shall  not  be  suspended,  unless 
This  statute  of  Charles  II.  only  covered  when  in  cases  of  rebellion  or  invasion 
arrests  on  a  criminal  charge.  This  was  the  public  safety  may  require  it." 
only  remedied  by  56  Geo.  III.  c.  100.  This  of  course  only  applies  to  the 
The  right  to  personal  liberty  —  the  Federal  Government ;  but  is  most 
most  precious  of  all  rights  —  is  as  old  unfortunately  ambiguous  as  it  does 
as  the  Constitution  itself.  It  rests  not  say  who  is  to  suspend  the  writ, 
upon  the  common  law  wliich  was  The  better  law  is  that  the  President 
merely  defined  and  declared  by  Magna  may  not  suspend  the  writ,  but  only 
Carta  and  the  stream  of  statutes  Congress;  though  they  may  perhaps 
which  form  that  enactment  (Taswell-  authorize  the  President  to  suspend  the 
Langmead,  p.  488).  An  EngUsh  sub-  writ  on  finding  a  special  state  of  facts, 
ject  was  always  free  from  lawful  It  may  be  questioned,  however,  whether 
detention  except  upon  a  criminal  an  act  would  be  constitutional  which 
charge  or  conviction  or  for  a  civil  authorized  the  President  to  suspend  the 
debt,  and  the  habeas  corpus  was  in  writ  at  his  discretion.  Habeas  corpus 
theory  always  a  writ  of  right,  but  it  will  issue  from  a  Federal  court  to  a 
was  doubtful  whether  it  could  be  State  court  or  other  authority,  but  only 
issued  by  a  single  judge  during  vaca-  on  the  ground  that  the  person  detained 
tion,  and  it  was  only  issued  by  the  is  deprived  of  a  right  secured  to  him  by 
Court  of  lung's  Bench.  The  Habeas  or  under  the  Constitution  of  the  United 
Corpus  Act  of  Charles  II.  fixed  no  limit  States.  The  President  was  authorized 
on  the  amount  of  bail  which  might  be  to  suspend  the  writ  by  Act  of  Congress 
demanded,  which  defect  was  remedied  in  1863,  1866,  1867  (McClain,  p.  331), 
by  the  Bill  of  Rights  in  1689,  and  it  but  there  is  no  general  act  to  that 
did  not  provide  against  falsehood  in  effect  in  Revised  Statutes, 
the  return.    (See  II.  Taylor,  pp.  328- 


PART   l]  BILL   OF   RIGHTS:     CRIMINAL  1G7 

invasion  or  rebellion,  the  public  safety  requires  it.*  In  others,  it 
can  never  be  suspended  in  any  case.'  "Martial  law"  of  course 
would  suspend  it.^  The  writ  can  only  be  suspended  by  the  legisla- 
ture.^ In  other  States  this  is  implied  by  the  general  provision  of 
§  392;  and  it  is  a  general  constitutional  principle. 

The  manner  of  its  suspension  is  left  to  the  legislature  to  determine 
by  law.^ 

§  127.  Indictment.^  In  most  States,  the  Constitution  provides 
that  no  person  shall  be  held  to  answer  for  a  capital  crime  '  or  a  crime 
punishable  by  imprisonment  for  life  ^  or  infamous  crime  or  felony  " 
or  any  criminal  offence  ^"^  except  on  indictment  or  presentment  of  a 
grand  jury.^*     So,  in   others,  that   no  person,  for  any   indictable 

'  Ariz.*  Bill  of  Rts.  9;  Ark.  2,  11;  constitutional  provision  requiring  an 
Cal.  1,  5;  Col.  2,  21;  Ct.  1,  14;  Del.  indictment  in  England,  though  the 
1,  13;  Fla.  Decln  of  Rts.  7;  Ida.  1,  5;  effect  of  a  habeas  corpus  is  in  most 
111.  2,  7;  Ind.  1,  27;  lo.  1,  13;  Kan.  cases  to  make  one  necessary.  Informa- 
Bill  of  Rts.  8;  Ky.  16;  La.  13;  Me.  tions  were,  however,  always  unpopular 
1,  10;  Mich.  4,  44;  Minn.  1,  7;  Miss,  and  are  rendered  very  unusual  by  the 
21;  Mon.  3,  21;  N.  D.  5;  Neb.  1,  8;  effect  of  recent  statutes  (4  Blackstone, 
Nev.  1,  5;  N.  J.  1,  11;  N.  M.*  95,  1;  311)  requiring  express  directions  from 
1851,  July  12,  §  10;  N.  Y.  1,  4;  O.  1,  the  Court  of  King's  Bench.  The  con- 
8;  Ore.  1,  23;  Pa.  1,  14;  R.  I.  1,  9;  stitutional  provisions  of  California  and 
S.  C.  1,  23;  S.  D.  6,  8;  Tenn.  1,  15;  other  code  States  would  seem  to  revive 
Utah  1,  5;  Va.  58;  Wash.  1,  13;  Wis.  the  information  in  all  criminal  cases. 
1,  8;  Wy.  1,  17.  '  Ct.,  Fla.,  La.,  Me.,  Nev.,  N.  M.*, 

-  Ala.  1,  17;    Ga.  1,  1,  11;    Md.  3,  N.  Y.,   O.,  Okla.,  R.  L    See  Note  7 
55;   Mo.  2,  26;    N.  C.  1,  21;    Okla.  2,   below. 
10;  Tex.  1,  12;   Vt.  Amt.  12;   W.  Va.        »  Ct. 

3,  4.  Or  can  only  be  suspended  on  the  *  All  the  States  previously  men- 
most  urgent  occasions,  and  for  a  tioned  except  Ct.  and  La. ;  and  also 
limited  time  (not  exceeding  in  Massa-  in  Cal.,  Col.,  Mo.,  N.  D.,  and  the 
chusetts  twelve  months,  and  in  New  U.  S.  Const.  Amt.  5  as  applying  to 
Hampshire  three  months.  Mass.  2,  6,  Federal  courts.  An  indictment  is 
7;  N.  H.  2,  90).  not  necessary   to    due  process  of  law 

^  Compare  §§  293,  392.  and  consequently    is   not   required  by 

*  Ark,  Ct.,  Ida.,  Md.,  Mich.,  the  Federal  Constitution  in  the  State 
Miss.,  N.  H.,  R.  I.,  Tenn.  courts  under  the   Fourteenth  Amend- 

*  Ida.  1,  5 ;  Neb.  ment. 

*  Compare  U.  S.  Amt.  5.  A  present-  *°  Ark.,  Ill,  lo.,  Ky.,  Minn., 
ment  is  the  notice  taken  by  a  grand  N.  C,  Neb.,  N.  J.,  Okla.,  S.  C, 
jury  of  an  offence  of  their  own  knowl-   S.  D.,  Tenn.,  Tex.,  W.  Va. 

edge  without  an  indictment.    Informa-        "  Ariz.*  Bill  of  Rts.  14;    Ark.  2,  8; 

tion  is  a  complaint  against  a  person  Col.  2,  8;  Ct.  1,  9;   Fla.  Decln.  of  Rts. 

for   some    criminal   or   penal    offence,  10;    111.2,8;   lo.  1,  11;   La.  9 ;   Me.  1, 

filed  by  the  proper  officer,  on  behalf  7;   Minn.  1,  7;   Mo.  2,  12;   Amt.  1899, 

of  the  people,  at  his  own  discretion,  on  p.  382;   N.  C.  1,  12;   N.  D.  8 ;   N.  M.* 

the  relation  of  some  private  person;  50,  6;    1851,  July  12,  §  8;   Neb.  1,  10; 

not   founded  on  the  oath  of    a   jury,  Nev.  1,  8;   N.  J.  1,  9;   N.  Y.  1,  6;   O. 

although  the   subsequent  proceedings  1,  10;  Okla.  2,  17;   R.  I.  1,  7;   S.  C.  1, 

are  the  same.     (Stimson's  Law  Glos-  17;   Tenn.  1,  14;   Tex.  1,  10;    W.  Va. 

sary.)    There  does  not  appear  to  be  any  3,  4 ;  Wy.  1,  13. 


108  THE    STATE    CONSTITUTION'S  [BOOK    III 

ofTonce,  shall  be  proceeded  against  criininally,  by  information.'  In 
Wisconsin  and  Minnesota,  no  person  shall  be  held  to  answer  for  a 
criminal  offence  without  due  process  of  law.- 

But  in  the  "code"  States,  offences  may  usually  l)e  prosecuted 
either  by  indictment  or  by  information  after  examination  and 
commitment  by  a  magistrate.^  Under  this  statute  indictments 
are  practically  done  away  with  and  all  offences  are  prosecuted 
bv  such  inforuiation,*  except  that  a  grand  jury  may  still  be 
summoned.^ 

Exceptions.  But  in  nearly  all  these  states  an  exception  to  the 
above  rule  is  made  in  cases  arising  in  the  army  or  navy  of  the  State 
or  the  militia,  in  time  of  war  or  public  danger,"  or  at  any  time.'  An 
exception  is  made  also  in  cases  of  impeachment.^ 

So,  of  course,  in  cases  of  inferior  offences  not  above  described, *  as 
petit  larceny,'"  or  in  courts  not  of  record,"  or  cases  cognizable  by  a 
justice  of  the  peace,'-  or  by  the  county  court, '^  or  poHce  courts,"  or 
probate  courts,'^  or  in  cases  where  the  punishment  is  by  fine,  or  by 
imprisonment  not  in  the  penitentiary.'" 

A  person  may  be  proceeded  against  by  information,  by  leave  of 
court,  for  oppression  or  misdemeanor  while  in  office.'^ 

Indictments  are  (of  course)  unnecessary  in  cases  where  the  legisla- 
ture may  have  dispensed  with  a  grand  jury  and  provided  other 
process  by  law.'^  But  without  a  constitutional  permission,  such 
dispensing  would  be  invalid. 

In  cases  where  indictments  may  be  employed,  indictment  and 
information  are  declared  concurrent  remedies.'^ 


1  Ala.    1,   8;    Del.    1,   8;     Ky.    12;  »  Ariz.*,  Ark.,  Fla.,  Ida.,  111.,  Me., 
Miss.  27;  Pa.  1,  10.  Minn.,    N.    C,    Neb.,    Nev.,    N.    M.*, 

2  Minn.  Amt.  1903,  269;    Wis.  1,  8  N.  J.,  N.  Y.,  O.,  R.  I.,  S.  D.,  Tenn., 
and     Amt.       Presumably     the     same  Tex. 

meaning  is  intended.  ®  Ala.,   La.,   Miss.,   N.  D.,    O.,  and 

3  Cal.  1,  8;    Ida.  1,  8;   La.  9;   Mon.  others. 

3,  8;    Okla.;  S.  D.  6,  10;    Utah  1,  13;  '°  Ala.,  Nev.,  N.  Y.,  O. 

Wash.  1,25.  '1  Ala.;     Ark.;     lo. ;     Me.;     Minn.; 

*  Ida.;  Mon.;  Utah;  Wash.  1,  26.  Miss.;  Mon.  3,  8;  N.  J. ;  N.  M.*;  R.  L 

^  But  not,  by  information,  after  a  S.  D. ;  W.  Va. 

charge   has  been  ignored  by  a  grand  "  Okla. 

jury.     See  §  129.  '^  g   jy  .  -pex.  5,  17. 

«  Ala.,  Ariz.*,  Ark.,  Col.,  Ct.,  Del.,  ^*  D.  C*  1064;  Mon. 

Fla.,    Ida.,     111.,    lo.,    Ky.,    La.,    Me.,  '^  Ida.,  Mon. 

Minn.,  Miss.,  Mo.,  N.  D.,  Neb.,  Nev.,  '^  jn^  ^eb.,  Tex. 

N.  J.,  N.  M.*,  N.  Y.,  O.,  Pa.,  R.  I.,  »^  Ala.,  Ky.,  Miss.,  Pa. 

S.  C,  S.  D.,  Tex.,  U.  S.,  Wy.  ^^  See  §  128. 

'  Fla.,  N.  Y.,  N.  D.,  S.  D.  "  Col.,  La.,  Mo. 


PART   l]  BILL   OF   RIGHTS:     CRIMINAL  169 

§  128.  Grand  Juries.^  In  some  States  the  Constitution  gives  the 
legislature  authority  to  make  laws  dispensing  with  a  grand  jury  in 
any  case.^  In  Oklahoma  (2,  18)  it  may  make  the  calling  of  grand 
juries  compulsory.  So  "No  grand  jury  shall  be  summoned  unless, 
in  the  opinion  of  the  judge  of  the  district,  public  interest  demand 
it."^  One  hundred  resident  taxpayers  of  the  county  may,  in 
Oklahoma,  petition  any  judge  to  call  one. 

A  grand  jury  shall  consist  of  twelve  men,  any  nine  of  whom  may 
concur  to  find  an  indictment  or  true  bill.^  Of  seven  men,  of  whom 
five  may  so  concur.^  Of  any  number  from  five  to  fifteen.®  Eighteen, 
of  whom  twelve  may  so  concur.^    Of  eight. ^ 

After  a  charge  has  been  ignored  by  a  grand  jury,  no  information 
will  lie.^  The  Oklahoma  Constitution  [unnecessarily]  specifies  that 
grand  juries  have  power  to  return  indictments  for  all  character  and 
grades  of  crime,  and  such  other  powers  as  the  legislature  may 
prescribe. 

Article  13.    Rights  at  Trial 

§130.  Rights  to  Law.^''  In  nearly  all  the  States  the  Constitution 
provides  that  no  person  can  be  deprived  of  his  life,  liberty,  or  property 

*  Grand  juries  are  older  than  petit  nor  conceal  any  guilty  one.     In  other 

juries.      By   the   Assize   of   Clarendon,  words,  they  were  inquisitors  represent- 

A.  D.  1166,  it  was  ordained  that  in  every  ing    the    earliest    form    of    a    jury    of 

county    twelve    lawful    men    of     each  presentment. 

hundred,  with  four  lawful  men  from        ^  Col.  2,  23;    111.  2,  8;    Ind.  7,  17; 

each   township,    should    be    sworn    to  lo.  Amt.  3 ;  N.  D.  8;  Neb.  1,  10;  Ore. 

present  all  reputed  criminals  of  their  7,  18;    S.  D.  6,  10;   Wy.  1,9;  Wash, 

district  in  each  county  court,  at  a  time  In  misdemeanors,    etc.,    only:   Ala.  1, 

when  the  persons  so  presented  were  8 ;  Miss.  27. 

tried   by   the   water  ordeal    (Taswell-        ^  Ida.;     Mo.    Amt.     1899,    p.    38; 

Langmead,  p.  134).     In  the  course  of  Mon. ;   Utah  1,  13;  Wash.  1,  26. 
time  the  element  of  popular  election        *  Col.;    La.  117;    Ky.  248;    Mo.  2, 

in  the  mode  of  nominating  the  grand  28;  Okla.  1,  18;  Tex.  5,  13;  Wy. 
jury  was    entirely  eliminated.      Now,        *  Mon. ;   Ore. ;   Utah, 
twenty-four  freeholders  of  each  county         ^  lo. 
are  summoned  by  the  sheriff,  of  which         '  S.  C.  5,  22. 
a  certain  number,  varying  from  twelve         *  Miss, 
to  twenty-three,  are  sworn.     A  grand        ^  Ida.,  Utah. 

jury  in  the  United  States  usually  con-        '°  This     provision     is     founded     on 

sists  of  twenty-three,  but  they  must  all.  Magna   Carta,    C.    39.      Compare   also 

in  the  absence  of  express  constitutional  U.  S.  C.  Amts.  5,  14,  and  §§  70,  72,  127. 

provision,   concur  in   order   to  find   a  The  right  of  a  man  to  law  either  as 

bill  of  indictment.     Tajdor  traces  the  against     king,    officer,    or    subject,    is 

Grand  Jury  to  the  Hundred  Courts  of  discussed  in  Book  I.,  and  in  matters  not 

Aethelred,  his  law  providing  that   the  criminal   under    §    70.      We    are   now 

twelve  senior  thegns  go  out  and  swear  discussing  that  protect'on  to  a  man's 

on  the  relic  that  is  given  them  in  hand  person,    property,    or    liberty,    which, 

tliat  they  will  accuse  no  innocent  man  while  it  always  existed  under  English 


170  THE    STATE    CONSTITUTIONS  [llOOK    III 

except  bv  due  process  of  law; '  or  by  tlie  law  of  the  land  or  the  jtidf;- 
mcnt  of  his  peers.-     The  exact  wording  may  be  important  as  deter- 

law,  was  so  clearly  expressed  in  Mapjna  but  by  the  judgment  of  his  peers,  that 

Carta,  Chap.  39.     "No  free  man  shall  is,  etiuals,  or  according  to  tlie  law  of 

be  taken,  or  imprisonetl,  or  disseised,  the  land.     Others  have  said  that  Jolm 

or   outlawed,    or   exiled,    or   anyways  was  in  tlie  habit  of  descending  upon 

destroyed;    nor  will  we  pass  upon  him  his  enemies  with  an  armed  force,  and 

(in  some  translations,  "go  upon  him"),  tliat  this  was  meant  to  be  forbidden, 

nor  will  we  send  upon  him,  unless  by  Whatever  was  the  historical  meaning, 

the  lawful  judgment  of  his  peers,  or  the  former  one  has  grown  to  be  tlie 

by  the  law  of  the  land."      In  these  true  one,  and  the  words  were  used  in 

clauses    are    contained    both    habeas  the  times  of  the  Tudors  and  Stuarts  to 

corpus   and   trial   by   jury,    the   most  prevent  any  condemnation,  outlawry, 

effectual  securities  against  oppression  or  forfeiture  of  a  subject  without  the 

which  the  wisdom  of  man  has  hitherto  proper    forms    or    law.       The    words 

been  able  to   devise.      "Henceforth,"  "judgment  of  his  peers  or  by  the  law 

says  Hallam,    "it  must  have  been  a  of  the  land,"  or  as  they  appear  in  later 

clear  principle  of  our  constitution  that  confirmations    of    the    charter    "due 

no  man  can  be  detained  in  prison  with-  course  of  law"  did  not,  at  the  time  of 

out  trial.     Whether  courts  framed  the  the    original   Charter   of   John,    mean 

writ  of  Habeas  Corpus  in  conformity  jury   trial,    although   Coke   says   they 

with  this  clause  or  possessed  it  already  meant   the   lawful  judgment,   that   is, 

it  became  from  that  era  the  right  of  verdict  of  his  equals,  or  the  law  of  the 

every  subject  to  demand  it."     Coke  land,  that  is,  the  due  course  and  process 

points  out  that  these  clauses,  as  they  of  law.     It  is  probable,  however,  that 

stand  combined  in  the  second  issue  of  the  words  included  trial  by  jury,  even 

the  Charter  under  Henry  III.  with  the  in  the  original  charter,  as  it  was  used 

words  "No  person  shall  be  disseised  at  the  time,  and  there  can  be  no  ques- 

of   his  free  tenement   or  liberties,   or  tion  but  that  by  the  interpretation  of 

customs"  recite  the  evils  from  which  centuries    they    have    come    to    mean 

the  laws  of  the  land  are  to  protect  the  that   both   in   English   and   American 

subject,   in  the  order  in   which  they  constitutional  history.      (See  Taswell- 

most   affect    him.      First,    the   liberty  Langmead,      107.)        The     American 

of  a  man's  person.    Second,  his    prop-  Supreme  Court  has  decided  that  the 

erty,  liberties,  or  free  customs,  that  is,  words  "due  process  of  law"   do  not 

the  right  to  labor  or  trade  as  well  as  necessarily  mean  trial  by  jury,  but  it 

other  franchises;     which  inferentially  is  at  least  probable  that  they  did  so 

forbids       state-created       monopolies,  mean,  in  any  case  where  trial  by  jury 

Only  the  third  clause,  relating  to  out-  was  wont  to   be  used ;     and   such   is 

lawry,    may    be    considered    obsolete,  certainly  the  Constitution  in  England. 

The  words  "Nor  will  we  go  upon  him,"  In  fact,  the  Supreme  Court  in  render- 

etc,  are  much  disputed.     Coke  takes  ing  this  decision  do  not  refer  to  the  fact, 

the  simple  meaning  that  no  person  is  nor   was   it   pointed    out   to   them    in 

to  be  condemned  at  the  King's  suit,  argument,  that  the  words  "judgment 

that  is,  in  any  criminal  or  penal  suit,  of  his  peers"  and  "due  course  of  law" 


1  Ala.  1,  6;   Ariz.*  Bill  of  Rts.  14;  Okla.  2,    7;    S.  C.  1,  5;    S.  D.  6,    2; 

Ark.  2,  8;   Cal.  1,  13;   Col.  2,  25;    Ct.  Tex.  1,  19;  Utah  1,  9;  Wash.  1,3;  Wy. 

1,  9;   Fla.  Decln.  of  Rts.  12;   Ga.  1,  1,  1,  6. 

3;   Ida.  1,  13;    III.  2,  2;   lo.  1,  9;   Ky.        ^  i^gi  17.  T^iagg  j^  12;  Md.  Decln. 

14;    La.  2;    Mich.  6,  32;    Minn.  1,  7;  of  Rts.  23  ;  Me.  1,  6;  N.  H.  1,  15;  N.  M.* 

Miss.  14 ;  Mo.  2,  30 ;  Mon.  3,  27 ;  N.  C.  95,  1 ;  Pa.  1,  9 ;  R.  I.  1,  10 ;  Tenn.  1,  8 ; 

1,17;  N.  D.  13  ;  Neb.  1,  3 ;  Nev.  1,8;  Va.  1,  8  &  11 ;  Vt.  1,  10 ;  W.  Va.  3,  10. 
N.  M.*  1851,  July  12,  §  15;  N.  Y.  1,  6; 


PART    l] 


BILL   OF   RIGHTS  :    CRIMINAL 


171 


mining  rights  of  trade  or  labor,  freedom  of  contract,  etc.    Even  in 
Magna  Carta  of  Henry  III.  it  includes  one's  "  liberties  or  free  cus- 


are  used  interchangeably  in  the  several 
issues  of  Magna  Carta  and  in  many 
Acts  of  Parliament. 

In  connection  with  this  clause  must, 
of  course  be  read  Cap.  40.  "To  none 
will  we  sell,  to  none  will  we  deny  or 
delay  right  or  justice."  (In  some  trans- 
lations, "  We  will  sell  to  no  man,  we  will 
not  deny  to  any  man  either  justice  or 
right.")  See  §  70,  notes.  "These 
words,"  says  Coke,  "are  spoken  in  the 
person  of  the  King,  who,  in  judgment 
of  law,  in  all  his  courts  of  justice  is 
present,  and  repeating  these  words." 
The  words  "To  none  will  we  sell"  were 
intended  to  abolish  the  fines  paid  in 
early  times  for  procuring  right  or 
judgment.  "To  none  will  we  deny" 
referred  to  the  stopping  of  suits  and  the 
denial  of  writs.  "To  none  will  we 
delay"  meant  the  delays  caused  either 
by  the  counter-fines  of  defendants,  or 
by  the  will  of  the  king.  Taylor  points 
out  (I.  389)  that  the  formula  of  Magna 
Carta  was  almost  exactly  anticipated 
in  an  edict  of  Conrad  II.  issued  two 
centuries  before  in  the  words  "No  one 
shall  lose  his  benefit  except  according 
to  the  custom  of  our  ancestors  and  by 
judgment  of  his  peers."  And  in  the 
so-called  laws  of  Henry  I.  it  is  expressed, 
"Every  one  is  to  be  judged  by  his 
peers  of  his  own  county."  This  would 
dispose  of  the  trial  by  jury  theory, 
historically;  but  it  is  clearly  of  not  so 
much  importance  as  it  seems.  What- 
ever the  clause  meant  at  the  time  of 
King  John,  it  has  been  repeatedly 
established  in  seven  centuries,  either  aa 
against  king,  American  Congress  or 
President,  that  trial  by  his  peers,  at 
least,  does  mean  trial  by  jury  as  the 
word  is  now  understood.  The  only 
real  doubt  is  whether  "due  course  of 
law"  does  not  mean  the  same  thing. 

There  is  considerable  doubt  whether 
the  law  referred  to  in  this  section  is  in 
England  the  law  of  the  king  or  the 
law  of  the  people.  "Pleas  of  the 
Crown  are  criminal  prosecutions  carried 
on  in  the  name  of  the  sovereign,  who  is 
supposed  by  the  law  to  be  the  person 
injured  by  every  infraction  of  the  public 
rights  of  the  community."  (Blackstone, 


reported  in  Taswell-Langmead,  p.  93.) 
On  the  other  hand,  as  we  have  dis- 
cussed in  the  first  part,  the  English 
notion  of  law  was  the  custom  or  law 
of  the  people,  written  or  unwritten, 
not  the  command  of  a  king  to  his 
subject.  Hence,  constitutional  his- 
torians will  differ  on  this  point  accord- 
ing as  they  take  what  we  may  call  the 
Norman  or  the  Saxon  view.  The 
distinction  may  appear  somewhat 
theoretical,  but  it  was  not  so  in  early 
days  when  every  king  upon  his  acces- 
sion was  compelled  to  promise  to  ob- 
serve the  laws  or  customs  of  the  English 
or  of  Edward  the  Confessor;  and  for 
centuries  the  English  people  struggled 
to  establish  or  restore  the  principle 
that  the  people,  that  is.  Parliament, 
alone  could  make  or  unmake  a  law,  — 
with,  of  course,  the  consent  of  the  king, 
—  against  the  effort  of  all  the  kings, 
at  least  until  the  Revolution  of  1688 
established  the  principle  that  the  law 
was  theirs  and  they  made  it.  In 
England,  writs  still  rvm  "against  the 
peace  of  the  King,"  but  this  is  probably 
as  much  of  a  formality  as  the  words 
"The  King  so  wills"  at  the  end  of  an 
Act  of  Parliament.  Writs  in  New  York 
run  in  the  name  of  "The  people  of  the 
State  of  New  York  by  the  grace  of 
God  free  and  independent,"  but  in 
most  States  they  run  in  the  name  of  the 
State  or  Commonwealth  as  the  case 
may  be.  (Massachusetts,  Pennsyl- 
vania, Virginia,  and  Kentucky  are  the 
only  "commonwealths ;  "  all  the  others 
are  States.)  As,  upon  the  Declaration 
of  Independence,  the  right  of  sover- 
eignty reverted  to  the  people  of  each 
colony  and  not  to  the  States,  in  the 
first  instance,  it  may  be  questioned 
whether  the  former  is  not  the  better 
form.  It  certainly  tends  less  to  con- 
fusion of  thought  and  socialism. 

It  is  important  to  note  that  the 
right  to  law  in  England  has  always 
meant  the  right  to  the  law  of  one's  o-rti 
country  or  neighborhood  and  one's 
local  court.  Magna  Carta  itself  has  a 
chapter  on  this  point,  C.  34.  "The  writ 
called  praecipe  shall  not  in  future  be 
issued   so   as   to   cause  a  freeman  to 


172  THE   STATE    CONSTITUTIONS  [nor)K    III 

toms."  Thus  in  New  Ilanipsliiro  and  Massachusetts:  "arrested, 
imprisoned,  despoiled,  or  deprivetl  of  his  jjroperty,  immunities,  or 
privileges,  put  out  of  the  protection  of  the  law,  exiled,  or  dij)rived 
of  life,  liberty,  or  estate." 

No  person  shall  be  arrested,  detained,  and  punished ;  or,  in 
Alabama,  accused,  arrested,  or  detained,  except  in  cases  clearly 
ascertained  by  law.'    And  according  to  the  forms  by  law  prescribed.^ 

In  several  States,  no  person  shall  be  disfranchised  or  deprived  of 
any  rights  and  privileges  as  a  citizen,  unless  as  provided  above 
respectively.^ 

§  131.     Jury  Trial.*  In  most  States,  the  Constitution  provides 

lose  his  court,"  and  the  object  of  this  accuse    a  powerful    layman    amenable 

writ    was    to    prevent    a    case    being  to  the  bishop's  jurisdiction,  tiie  sheriffs, 

removed    to    the    King's    Court    from  at  the  bishop's  re(|uest,  were  directed 

the   Court    Baron   or   manorial   court,  to    'swear  twelve   lawful   men   of  the 

In  early  times  the  English  people  had  neighbourhood  to  tell  the  truth,  accord- 

the   same   dread   of   centralizing   even  to   their   conscience.'"      If   the   jurors 

the  judicial  power  in  London,  or  with  chosen  were  ignorant  of  the  facts,   a 

the  king's   person,  that   the   founders  fresh  jury   had  to  be  summoned.      If 

of  the  American  Constitution  had  as  some  were  ignorant  or  if  they  could  not 

against    the    Federal    power.      C.    24,  agree,  others  were  added,  which  was 

however,  secured  the  trial  of  all  serious  called    "afforcing   the   jury,"    until   a 

crimes  before  the  king's  justices.    "No  verdict  could  be  obtained  from  twelve 

sheriff,  constable,  coroner  or  bailiff  of  unanimous  witnesses  .  .  .  just  the  op- 

the  Iving  shall  hold  pleas  of  the  Crown."  posite  of  the  modern  notion.    Trial  by 

'  Ala.  1,  7;  Ct.  1,  10;  S.  C.  jury  as  the  word   is  used  in   Magna 

2  Ala.  Carta,  therefore,  must  mean  a  jury  of 

'  Ark.  2,  21 ;    Mass. ;    Md. ;    Me. ;  this  sort.    The  English  mode  of  trying 

Minn.  1,  2;    N.  H. ;    N.  C. ;    N.  M.*  ;  facts  before  the  jury  arose  was  that  of 

N.  Y.  1,  1;    S.  C. ;   Tenn. ;   Tex.     For  the  ordeal,  by  water  or  otherwise ;   but 

lynch  law,  see  §  165.  this    was    abolished    by    the    fourth 

*  For  civil  cases,  see  Art.  7.     The  Lateran  Council  in  1215.    The  Norman 

matter  of  jury  trial  is  partly  discussed  method  of  trial  was  by  battle,  but  only 

in  the  notes  to  §§  128  and  130.  Theorig-  if  the  injured  prosecutor  demanded  it. 

inal  petit  jury  was  a  jury  of  witnesses,  Even  before  the  abolition  of  the  ordeal 

not  a  Saxon  institution,  but  operated  (says  Taswell-Langmead)  the  practice 

from,  or  suggested  by,  a  procedure  of  had  grown  up  of  allowing  a  second  or 

the  Norman  kings,  —  the   Inquest,   of  petit  jury  to  affirm  the  finding  of  the 

commissioners   to   verify   facts.      This  grand  jury ;    but  for  a  long  time  the 

Inquest  at  first  belonged  to  matters  not  prisoner  was  not  compelled  to  plead, 

judicial,  as,  in  1106,  Henry  I.  directed  that  is,  he  might  refuse  to  be  tried  by 

five    commissioners   to    verify    certain  jury,  in  which  case  he  was  remanded  to 

matters  concerning  taxation   and  the  prison  and  submitted  to  the  punish- 

customs  of  the  Church  by  the  oath  of  ment  called  -peine  forte  et  dure,  which 

twelve     of    the     citizens.       (Taswell-  was  abolished  in  England  only  so  late 

Langmead,  p.  131.)    Henry  II.  applied  as  George  III.  and  under  which  Giles 

recognition  by  jury  to  every  descrip-  Corey    was    executed    in    the    Salem 

tion  of  business,  fiscal  and  legal.     But  Witchcraft    case.      In    early    times    a 

the  use  of  a  jury  as  now  understood  is  verdict  of  a  majority  might  be  received, 

mentioned   for   the   first   time   in   the  as  in  some  of  the  new  American  States, 

Constitutionsof  Clarendon,  1164,  where,  but  by  the  reign  of  Edward  III.  the 
"when  no  one  could  be  obtained  to  necessity  for  an  unanimous  verdict  of 


PART   l]  BILL   OF   RIGHTS:    CRIMINAL  173 

that  (in  criminal  prosecutions)  all  persons  accused  shall  have  a  speedy 
and  public  trial  by  an  impartial  jury/  And  so,  in  several,  of  all 
persons  prosecuted  by  indictment  or  information.-  In  California, 
the  provision  is  simply  that  the  accused  shall  have  a  speedv  and 
public  trial. ^  So,  the  legislature  shall  make  no  law  subjecting  a 
person  to  capital  [or  infamous,  in  Mass.]  punishment  without  trial 
by  jury ;  *  or,  the  right  to  trial  by  jury  shall  remain  inviolate  in 
criminal  cases ;  ^  no  person  shall  be  convicted  of  any  crime  but  by 
the  verdict  of  a  lawful  jury  in  open  court.^  (Except  upon  confession, 
demurrer,  etc.,  in  Arizona  —  an  unnecessary  exception.) 

Exceptions.  The  legislature  may  provide  other  means  of  trial  for 
offences  not  infamous,^  for  petty  offences,^  for  all  offences  less  than 
felony,  and  in  which  the  penalty  does  not  exceed  $100  or  thirty  days' 
imprisonment;  these  shall  be  tried  summarily  before  a  justice  of  the 
peace.  **    No  fine  of  more  than  $50  shall  be  imposed  except  by  a  jury.'" 

But  in  all  such  cases  of  trial  without  a  jury  there  must  be  a 
right  of  appeal.^ ^ 

Laws  may  be  made  for  the  government  of  the  army  and  navy, 

twelve  was  re-established.     As  late  as        ^  Ark.  2,  10 ;   Col.  2,  16 ;   Del.  1,  7 

Queen    Anne    the    Court    of    Queen's  Fla.  Decln.  Rts.  11;   Ga.  1,  1,  5;    Ida 

Bench  decided  that  a  jury  might  give   1,  13;    111.  2,  9;    Ind.  1,  13;    lo.  1,  10 

a  verdict  of  their  own  knowledge,  but  Kan.  Bill  of  Rts.  10 ;  La.  9 ;  Md.  Decln 

ought  so  to  inform  the  Court,  that  they  of  Rts.  21;    Me.   1,  6;    Mich.  6,  28 

might  be  sworn  as  witnesses;    though  Minn.   1,  6;    Mo.  2,  22;    Mon.  3,  16 

as  early  as  the  year  1450  the  mode  of  N.  D.    13;    Neb.   1,   11;    N.  J.    1,  8 

procedure  by  viva  voce  evidence  was  N.  M.*  95,  1;   1851,  July  12,  §  8;  O.  1 

the    same    as    at    present.      Taswell-   10;   Okla.  1,20;   Ore.  1,  11;   Pa.  1,9 

Langmead  places  the  modern  principle  R.  I.  1,  10;    S.  C.  1,  18;    S.  D.  6,  7 

—  that    no    juror   is    competent    who  Tex.  1,  10;   Utah  1,  12;  Va.  1,  8;  Vt. 

knows  anj^hing  as  a  witness  —  so  late   1,  10;    Wash.  1,  22;    Wj\  1,  10;    and 

as  George  I.    In  old  days  the  jurymen,   so,  as  applied  to  Federal  courts,  in  U.  S. 

being  witnesses,  were  guilty  of  perjury  Amt.  6. 

if  they  gave  a  wrong  verdict;    and  as        -  Ala.  1,  6;  Ct.  1,  9;   Ky.  11;  Miss. 

late  as  1554  the  Court,  being  dissatis-  26;  N.  M.*  50,  7;  Tenn.  1,  9;  Wis.  1,  7. 

fied  with  a  verdict,  committed  a  jury        ^  Cal.  1,  13. 

to  prison;   but  in  1670  a  London  jury,        *  Mass.  1,  12;  N.  H.  1,  16;   L^tah  1, 

having    failed    to   find    William    Penn   10. 

guilty  of  preaching,  was  heavily  fined,        ^  Col.  2,  23 ;    Fla.  Decln.  of  Rts.  3 ; 

and  when  one  of  the  jurors  brought   Ida.  1,  7;    N.  Y.  1,  2;    Wash.  1,  21; 

habeas  corpus,  he  was  decided  by  Chief  Wy.  1,9;  see  also  §  72,  for  other  States. 

Justice    Vaughan    to    be    improperly        ^  Ariz.*  429 ;    N.  C.  1,  13 ;   N.  M.* 

imprisoned,  though  return  was  m.ade  50,  8 ;  W.  Va.  3,  14. 

that  he  had  been  committed  for  find-        ^  La.,  Va.  (Amt.  1891). 

ing  a  verdict  "against  full  and  mani-        *  Del.  15,  7;  N.  C. 

fest  evidence  and  against  the  direction        ^  lo.  1,  11 ;  S.  C.  5,  21. 

of   the    Court."      (Taswell-Langmead,       "  Tenn.  6,  14. 

p.    138.)      For  the   procedure   in  jury        ''  lo.,  N.  C...  S.  C. 

matters,  see  Art.  65  below. 


174  THE    STATE   CONSTITUTION'S  [BOOK    III 

(and  the  militia  in  actual  service,  in  X.  II.)  without  providing  for 
trial  by  jury.' 

All  cases  in  which  the  punishment  may  not  be  at  hard  labor  shall, 
until  otherwise  provitletl  by  law,  which  shall  not  be  prior  to  1904, 
be  tried  by  the  judge  without  a  jury.  Cases  in  which  the  punish- 
ment may  be  at  hard  labor  shall  be  tried  by  a  jury  of  five,  all  of 
whom  must  concur  to  render  a  verdict;  cases  in  which  the  punish- 
ment may  be  capital,  by  a  jury  of  twelve,  all  of  whom  must  concur 
to  render  a  verdict. - 

Waiver.  The  Constitution  provides  that  a  jury  may  be  waived 
by  consent  of  both  parties  in  all  criminal  cases  not  amounting  to 
felony.^  So,  the  accused  may  in  all  cases  waive  jury  trial,'  with  the 
consent  of  the  State's  attorney.^ 

§  132.  Juries.^  By  the  Constitution  of  Florida  the  number  of 
the  jury  may  in  all  cases  be  fixed  by  the  legislature.''  So,  in  other 
States,  in  courts  not  of  record,^  or  in  cases  not  punishable  by  hard 
labor  or  death."  Juries  in  the  county  or  other  inferior  court  consist 
of  six  men. '°  Not  less  than  five."  Eight,  in  cases  not  capital,  or  four, 
in  inferior  courts. '- 

The  parties  may  agree  on  a  jury  less  than  twelve  in  number,  in 
cases  of  misdemeanor.'^  But  otherwise  the  usual  number  (twelve) 
is  by  the  Constitution  declared  indispensable.'^ 

The  Verdict  of  the  jury,  by  the  Constitution  of  several  States, 
must,  except  as  below,  be  unanimous  to  convict.'^  But  in  others,  a 
verdict  of  five-sixths,  in  misdemeanors,'^  or  two-thirds, '^  suffices. 
So,  in  others,  nine  members  of  the  jury  may  concur  to  render  a 
verdict  in  cases  not  amounting  to  felony.'^  By  the  Constitution  of 
Louisiana,  the  accused  is  given  the  right  to  challenge  peremptorily 

1  Mass.,  N.  H.  In  other  States  '«  Mon.  3,  23;  Tex.  5,  17;  Okla. 
§  131  does  not  apply,  probably,  to  cases   1,  19. 

of  military  law  where  allowable.     See       "  Va. 

§  127.  '-  Utah  1,  10. 

2  La.  116.  "  Cal.  1,  7;  Ida.;  Mon. 

»  Cal.  1,  7;  Ida.  1,  17;  Mon.  3,  23.         "  Me.  1,  7;   W.  Va.  3,  14;   Okla. 

*  N.  M.*  1851,  July  12,  §  8 ;  Va.  1,  8.       ^'  Md.  Decln.  of  Rts.  21 ;    Me.  1,7; 
«  Va.  N.  C.  1,  13;  Okla.,  S.  C,  Utah,  Va.  8; 

*  See  §  73  for  juries  in  civil  suits,   Vt.  1,  10. 
and  §  131,  note.  "  Ida. 

'  Fla.  5,  38.  ^'  Mon. 

«  Col.  2,  23;    lo.  1,  9;   Mich.  6,  28;  *»  Tex.  5,  13;    Okla.     In  such  cases 

La.  9;   Mo.  2,  28;  Mon.;  Wash.  1,21;  the   verdict   must   be  in   writing  and 

Wy.  1,  9.  signed  by  each  member  concurring. 

»  Ky.  248 ;  La.  9. ;  S.  C.  5,  22 ;  Mon. ; 
Va.   1.  8. 


PART    l]  BILL   OF    RIGHTS:    CRIMINAL  175 

a  number  of  jurors  to  be  fixed  by  statute/  In  Oklahoma,  the 
Constitution  (7,  21)  provides  for  a  general  verdict,  though  the 
court  may  direct  a  special  finding. 

The  Constitution  provides  that  in  all  criminal  cases  whatever '  the 
jury  shall  have  the  right  to  determine  the  law  and  the  facts  ;^  but 
under  the  direction  of  the  court,  as  to  the  law.* 

§  133.  Venue.^  The  Constitutions  of  many  States  provide  that 
the  jury  shall  be  of  the  county  or  district  where  the  alleged  offence 
was  committed,"  and  this  county,  etc.,  shall  have  been  previously 
ascertained  by  law.''  So,  criminal  offences  must  be  tried  by  a  jury 
of  the  vicinage.^ 

Change  of.  In  several,  the  power  to  change  the  verme  is  vested 
in  the  courts.**  It  is  to  be  exercised  in  such  manner  as  the  legislature 
provide.^"    And  for  the  same  grounds,  by  State  or  defendant.  ^^ 

In  one,  change  of  venue  in  criminal  cases  can  only  be  directed  by 
the  legislature,  on  report  of  the  judges  of  the  Superior  Court,  in 
cases  of  insurrection.^- 

The  Constitutions  of  a  few  States  specially  give  to  the  legislature 
power  to  provide  for  change  of  venue.  ^^  So,  the  Constitution  specifies 
that  the  legislature  shall  so  provide  in  cases  where  an  impartial  trial 
cannot  be  had  in  the  county  where  the  crime  was  committed." 

The  legislatures  are  frequently  forbidden  to  enact  special  or  local 
laws  for  the  change  of  venue  in  civil  or  criminal  cases,  ^* 

In  Vermont  and  Oklahoma  no  person  can  be  transported  out  of 
the  State  for  any  offence  committed  within  it.^" 

§  134.     Counsel}'^    The  Constitutions  of  all  the  States  except 

1  La.  10.  S.  D.  6,  7;   Tenn.  1,  9;    Utah  1,  12; 

2  For  libel,  see  §  61.  Wash.  1,  22;  W.  Va.  3,  14;  Wis.  1,  7; 
'  Ind.  1,  19;    La.  179;    Md.  15,  5;   Wy.  1,  10. 

Ore.  1,  16.  '  Minn.,  N.  M.*,  Wis. 

*  La.,  Ore.  And,  subject  to  the  «  Ky.  11;  Mass.  1,  13;  Md.  1,  20; 
right  of  new  trial,  as  in  civil  cases  (Ore.).   Me.  1,6;   Pa.  1,9;  Va.  1,  8. 

"  By  the  reign  of  Henry  VII.  says  »  Ala.  75;  Ariz.*  11,  285;  Del.  1,  9; 
Hallam,  "the  fact  of  guilt  or  innocence  Md.  4,  8;  Pa.  3,  23;  W.  Va.  In  civil 
on  a  criminal  charge  was  determined  or  criminal  cases.  (Ala.,  Col.,  Ga., 
in  a  public  court,  and  in  the  county  La.,  Pa.,  S.  C,  Tex.) 
where  the  offence  occurred,  by  a  juiy  '"  Ala.  1,  6;  Ark.;  Col.  5,  37;  Ga. 
of  twelve  men,  from  whose  unanimous  6,  17,  1 ;  Mon. ;  Okla. ;  Pa. ;  Tex.  3,  45. 
verdict  no  appeal  could  be  made."  ''  Mon. 

»  Ala.  1,  6;   Ark.  2,  10;   Col.  2,  16;       '-  N.  H. 
Fla.  Decln.  Rts.  11;    111.  2,  9;    Ind.  1,       '=>  Ky. ;  La.  169. 
13 ;     Kan.    Bill   of    Rts.    10 ;     La.    9 ;       "  S.  C.  6,  2. 
Minn.  1,  6;  Miss.  28;  Mo.  2,  22;  Mon.        ^^  See  §  395. 

3,  16 ;  Neb.  1,11;  N.  H.  1,  17 ;  N.  M.*       '«  Vt.  1,  21 ;  Okla.  2,  29.    See  §  141. 
50,7;  0. 1,  10;  Okla.  1,20;  Ore.  1, 11;       '^  This  constitutional  provision  does 


17G  THE    STATE    CONSTITUTIONS  ,       [boOK    III 

Virginia  provide  citlicr  tliat  every  person  accused  may  defend  by 
himself  and  counsel.'  Or  (hat  he  may  have  the  assistance  of  counsel 
in  his  defence.-  Or  that  he  may  be  allowed  counsel,^  or  may  be 
heard  by  himself  or  counsel.'  In  several,  the  above  principle,  as 
particularized  respectively,  extends  to  any  suitor  in  a  court  of  law, 
civil  or  criminal.^ 

§  135.  Witnesses.^  By  the  Constitutions  of  most  of  the  States 
every  person  accused  is  entitled  to  enforce  by  compulsory  process 
the  attendance  of  witnesses  [in  liis  favor],^  or  to  call  for  evidence  on 
his  behalf.^ 

not  mean  that    defendant  is  entitled  tional  right.     Originally   -n-itncsses  in 

to  have  his  counsel  paiil  by  the  State,  England  testified  broadly  to  the  fact, 

but  it  is  usually  so  provided  by  statute,  that  is,   whether  the   person   charged 

(McClain  Constitutional  Law,  p.  327.)  was  guilty  or  not,  like  a  modern  jury, 

It  does  not  appear  that  the  riglit  to  or  rather  to  his  trustworthiness ;    this 

have  counsel  is  a  constitutional  right  trial    by    "compurgation"    being    the 

in  England.     At  one  time  certainly,  alternative  to  trial  by  ordeal,   which 

a  defendant  was  not  allowed  counsel  latter  was  usually  employed  only  when 

in  cases  of  treason  or  felony.    Counsel  there  was  strong  proof  of  guilt,  or  when 

was,  however,  early  allowed  by  express  the  accused  was  unable  to  procure  a 

statutes    in    trials    for    treason,    and  sufficient  number  of  compurgators,  or 

doubtless  this  and  other  statutes  made  had  been  guilty  of  perjury  on  a  previous 

a  precedent,  and  now  it  is  required  in  occasion.      These    compurgators    were 

all  cases  by  6  &  7  Wil.  IV,  chap.  114.  thus  in  reality  witnesses  of  character, 

*  Ala.  6 ;  Ariz.*  Bill  of  Rts.  14 ;  and  the  oaths  of  different  men  varied  in 
Ark.  2,  10;  Cal.  1,  13;  Col.  2,  16;  Ct.  legal  value  according  to  their  rank  or 
1,  9 ;  Del.  1,  7 ;  Fla.  Decln.  of  Rts.  11 ;  property.  Thus,  the  word  of  one  thegn 
Ga.  1,  1,  4;  Ida.  1,  13;  111.  2,  9;  Ind.  was  as  good  as  that  of  twelve  churls. 
1,  13;  Ky.  11;  Me.  1,  6;  Mo.  2,  22;  (Taswell-Langmead,  p.  31.)  Doubt- 
Mon.  3,  16 ;  N.  D.  13 ;  Nev.  1,  8 ;  N.  H.  1,  less  these  original  jury- witnesses  gave 
15;  N.  M.*  95,  1;  1851,  July  12,  §  8;  place  to  modern  \\itnesses  under  the 
N.  Y.  1,  6;  O.  1,  10;  Ore.  1,  11 ;  Pa.  1,  jury  trial.  (Taylor,  p.  325.)  It  does 
9;  R.  I.  1,  10;  S.  C.  1,  18;  S.  D.  6,  7;  not  appear  that  the  right  to  compel 
Tenn.  1,  9;  .Tex.  1,  10;  Utah  1,  12;  -^vitnesses  is  a  constitutional  right  in 
Vt.  1,  10;  Wash.  1,  22;  Wis.  1,  7;  Wy.  England,  but  rather  a  matter  of^time- 
1,  10.  honored  procedure.     White  says  only 

~  lo.   1,  10;    La.  9;    Mich.  6,  28;  since  1688  (p.  103). 
Minn.  1,  6;    N.  C.  1,  11;    N.  J.  1,  8;        '  Ala.  6;   Ark.  2,    10;   Cal.   1,   13; 

W.  Va.  3,  14.    So  in  U.  S.  C.  Amt.  6.  Col.  2,  16;    Ct.  1,  9;    Del.  1,  7;    Fla. 

3  Ga.  1,1,5;  Md.  Decln.  of  Rts.  21 ;  Decln.  Rts.  11 ;  Ga.  1,1,5;  Ida.  1,  13 ; 

N.  C.  1,  11.  111.  2,  9;    Ind.  1,  13;    lo.  1,  10;    Kan. 

*  Ala.  1,10;  Ariz.*  426;  Kan.  Bill  of  Bill  of  Rts.  10;  Ky.  11;  La.  9;  Md. 
Rts.  10;  Mass.  1,  12;  Mich.  6,  24;  Decln.  of  Rts.  21 ;  Me.  1,  6;  Mich.  6,  28; 
Miss.  25,  26;  Neb.  1,  11;  Nev.  1,  8;  Minn.  1,6;  Miss.  26;  Mo.  2,  22;  Mon. 
N.  M.*50,  7;   Okla.  1,  20;  Wis.  7,  20.  3,  16;  N.  D.  13 ;  Neb.  1,  11 ;  N.  J.  1,  8; 

«  Fla.,  Ga.,  Mich.,  Miss.,  Nev.,  Wis.  N.  M.*  50,  7;  95,  1 ;  1851,  July  12,  §  8; 

«  The  word  "witnesses"  in  the  first  O.  1,  10;   Okla.  1,  20;   Ore.  1,  11;   Pa. 

clause  will  undoubtedly  be  extended  1,9;  S.C.I,  18;  S.  D.  6,  7;  Tenn.  1,9; 

by  judicial  construction  to  include  the  Tex.   1,   10;  Utah    1,   12;  Vt.   1,   10; 

right  to  call  for  evidence,  documentary  Wash.  1,  22;  W.  Va.  3,  14;  Wis.  1,  7; 

or  other-5\-ise.     The   right  to  be  con-  Wy.  1,  10. 

fronted  with  witnesses  was  merely  a        *  Ariz.*  426;   Mass.  1,  12;   N.  C.  1, 

matter  of  general   common  law   pro-  11;  N.  H.  1,  15;  R.  I.  1,  10;  Va.  1,  8. 

cedure,  hardly  in  England  a  constitu-  So  in  U.  S.  C.  Amt.  6. 


PART    l]  BILL   OF   RIGHTS:    CRIMINAL  177 

In  Maryland  it  is  specially  provided  that  the  accused  may  examine 
all  witnesses  under  oath.  The  legislature  has  power,  in  several 
States  (except  in  cases  of  homicide:  Cal.)  to  provide  for  the  taking 
of  depositions,  in  the  presence  of  the  person  accused  and  his  counsel, 
when  there  is  reason  to  believe  that  the  witness  will  not  attend  the 
trial.^  But  in  most  States  the  old  rule  prevails  and  the  accused 
shall  be  confronted  with  the  witnesses  against  him.^  And  may 
give  evidence  (testify)  in  his  own  behalf.^ 

In  Oklahoma,*  in  capital  cases,  defendants  must  be  furnished 
with  a  list  of  the  witnesses  that  will  be  called  in  chief  by  the  prosecu- 
tion two  days  before  the  trial,  with  their  post-ofEce  addresses. 

§  136.  Criminating  Evidence.^  The  Constitutions  of  most  of 
the  States  provide  that  no  person  accused  shall  be  compelled  to  give 
evidence  against  himself,*^  or  to  furnish  evidence.^  So,  no  person 
[whether  accused  or  not,  it  seems]  can  be  compelled  to  give  evi- 
dence criminating  himself  in  any  court  of  law,^  or  in  any  criminal 
proceeding.^ 

"Any  person  having  knowledge  or  possession  of  facts  that  tend 
to  establish  the  guilt  of  any  other  person  or  corporation  charged 
with  an  offense  against  the  laws  of  the  State,  shall  not  be  excused 

^  Cal.,  Col.,  Mon.,  Wy.    See  §  124.  such  testimony  will  be  unconstitutional 
^  Ala.,  Ariz.*,  Ark.,  Col.,  Ct.,  Del.,  unless    it    guaranties    full    immunity 

Fla.,  Ga.,  111.,  Ind.,  lo  ,  Kan.,  Ky.,  La.,  from    prosecution  for  any  offences  so 

Mass.,  Md.,  Me.,  Mich.,  Minn.,  Miss.,  revealed ;  and  testimony  actually  given 

Mo.,  Mon.,  N.  C,  Neb.,  N.  H.,  N.  J.,  under    compulsion    cannot    be    used 

N.  M.*  50,  7;    95,  1 ;    1851,  July  12,  against  them. 

§  8;   O.,  Okla.,  Ore.,  Pa.,  R.  I.,  S.  C,        «  Ala.   6;   Ariz.*   Bill  of   Rts.   14; 

S.  D.,6,  7;Tenn.,  Tex.,  Utah,  Va.,  Vt.,  Ark.  2,  8;   Cal.  1,  13;    Col.  2,  18;    Ct. 

Wash.,    W.    Va.,  "Wis.,    Wy.      So    in  1,9;   Del.  1,7;  Fla.  Decln.  of  Rts.  12 ; 

U.  S.  C.  Amt.  6.  ♦  111.  2,  10 ;  Ind.  1,  14  ;  Kan.  Bill  of  Rts. 

3  Ala.,  Utah,  Wash.  10;  Ky.  11;  La.  11;   Mass.  1,  12;   Md. 

*Okla.  2,  20.     See  also  §  120.  Decln.  of  Rts.  22;   Me.  1,  6;    Mich.  6, 

*  The  word  "subject,"  oddly  enough,  32;    Minn.  1,  7;    Miss.  26;    Mo.  2,  23; 

is    retained    in    some   States    (Mass.,  N.  C.  1,  11;    Neb.  1,  12;    Nev.  1,  8; 

N.    H.).      The    provision    is    unfortu-  N.    H.    1,    15;    N.    M.*   95,    1;    1851, 

nately     ambiguous  ;    does     "  testify  "  July  12,  §  8;  N.  Y.  1,  6;  O.  1,  10;  Ore. 

include  furnishing    documentary   evi-  1,12;  Pa.  1,9;  S.C.I,  17;  Tenn.  1,9; 

dence  ?     This  came  up  in  the    Chi-  Tex.  1,10;  Va.  1,8;  Vt.  1,  10;  W.  Va. 

cago  beef-trust  cases  and  was  decided  3,  5 ;  Wis.  1,  8. 

in  the  affirmative.  —  This  is  also  not        ^  Ga.  1,  1,  6;  Mass.;  N.  H. ;  R.  I.  1, 

a    constitutional     right    in     England,  13;  Okla.  1,21;  Va. 

but  a  rule  of  common  law  procedure.        *  Ida.  1,  13;  La.;  Minn.  Amt.  1903, 

(McClain,  p.  320.)    It  applies,  however,  269;    Mon.  3,  18;    N.  D.  13;    S.  C.  1, 

to  all  cases,  whether  civil  or  criminal,  17;  S.  D.  6,  9 ;    Utah  1,  12;    Va.  1,  8; 

and  to  all  persons,  whether  "accused"  Wash.  1,  9;    Wy.  1,  11.     This  is  the 

at  the  time  or  not ;  and  to  the  produc-  wording  in  the  Federal  Constitution ; 

tion  of  books  or  papers  as  well  as  oral  U.  S.  C.  Amt.  5. 

testimony.    Hence  a  statute  compelling 

12 


178  THE    STATE    CONSTITUTIONS  [BOOK    III 

from  giving  testimony  or  producing  evidence,  when  legally  called 
upon  so  to  do,  on  the  ground  that  it  may  tend  to  incriminate  him 
under  the  laws  of  the  State;  but  no  person  shall  be  prosecuted  or 
subjected  to  any  penalty  or  forfeiture  for  or  on  account  of  any 
transaction,  matter,  or  thing  concerning  which  he  may  so  testify  or 
produce  evidence."     Okla.  27. 

"The  records,  books,  and  files  of  all  corporations  shall  be,  at  all 
times,  liable  and  subject  to  the  full  visitorial  and  inquisitorial 
powers  of  the  State,  notwithstanding  the  immunities  and  privileges 
in  this  Bill  of  Rights  secured  to  the  persons,  inhabitants,  and 
citizens  thereof."     Okla.  28. 

In  one  State,  by  the  Constitution,  husband  or  wife  may  not  in 
criminal  prosecutions  be  compelled  to  testify  against  one  another.* 

§  137.  Twice  in  Jeopardy.^  In  most  States  the  general  pro- 
vision is  found  that  no  person,  for  the  same  offence  can  be  twice 
put  in  jeopardy,^  in  jeopardy  of  life  or  limb,*  in  jeopardy  of  life  or 
liberty,^  or  in  jeopardy  of  punishment." 

But  it  is  provided  that  the  accused  shall  not  be  deemed  to  have 
been  in  jeopardy  if  the  jury  disagree,  or  the  judgment  be  reversed 
for  error.  ^ 

But  in  several  the  provision  is  that  no  person  shall,  after  an 

'  Utah  1,  12.  This  is  the  common  discharged  could  not  be  re-arrested  for 
law.  the  same  offence,  which  is  a  somewhat 

-  See  also  §  668.  The  phrase  "twice  similar  principle.  The  word  "limb" 
in  jeopardy"  may  be  defined  to  be  the  in  the  provision  is,  of  course,  obsolete, 
being  confronted  with  a  petit  jury  as  all  punishments  but  death  and 
w^hen  charged  with  an  offence,  though  imprisonment  have  ceased  in  all  States, 
the  law  varies  somewhat  in  different  except,  indeed,  the  wliipping-post  in 
States.     In  about  half  the  States,  the  Delaware. 

government  has  the  right  to  appeal  in  ^  Ariz.*  Bill  of  Rts.  14 ;  Cal.  1,  13 ; 
case  of  mistrial ;  that  is,  for  error  of  Col.  2,  18 ;  Fla.  Decln.  of  Rts.  12 ;  Ida. 
law,  and  in  all  States  the  accused  can  1,  13;  111.  2,  10;  Ind.  1,  14;  Kan.  Bill 
be  tried  again  if  the  jury  disagree.  It  of  Rts.  10 ;  Mon.  3,  18 ;  N.  D.  13 ;  Neb. 
is  usually,  however,  the  custom  not  1,  12;  Nev.  1,  8;  N.  Y.  1,  6;  O.  1,  10; 
to  try  a  man  more  than  twice,  and  Ore.  1,  12;  S.  D.  6,  9;  Utah  1,12;  Va. 
thereafter  he  is  released  upon  bail.  1,8;  Wash.  1,9;  Wy.  1,  11. 
President  Roosevelt  has  had  intro-  *  Ala,  9;  Del.  1,  8;  Ky.  13;  Me.  1, 
duced  a  bill  giving  the  government  the  8;  N.  M.*  1851,  July  12,  §  12;  Pa.  1, 
right  of  appeal  in  Federal  courts.  It  10;Tenn.  1,  10.  So  in  the  U.  S.  C.  Amt. 
might  possibly  not  be  constitutional  5.  TMs  limits  it  to  capital  cases, 
under  the  5th  Amendment,  though  the  *  Ark.  2,  8;  Ga.  1,  1,  8;  La.  9; 
better  opinion  is  to  the  contrary.  The  S.  C.  1,  17;  Tex.  1,  14;  Va.  88;  W.  Va. 
principle  probably  dates  back  to  the  3,  5;  Okla.  1,  21. 

time  of  the  Bill  of  Rights,  though  not        "  Minn.     1,    7;      Miss.    22;      Mon.; 
expressly  included  therein.   The  Habeas  N.  D.;  Wis.  1,  8. 
Corpus  Act  provided  that  a  person  once        ^  Col.,  Wy. 


PART    l] 


BILL   OF    RIGHTS  :     CRIMINAL 


179 


acquittal,  be  tried  for  the  same  offence/  or  have  his  Ufe  or  hberty 
again  put  in  jeopardy  for  the  same  offence.- 

But  in  three,  it  is  specified  that  such  acquittal  must  be  upon  the 
merits.^  And  in  Texas,  it  must  be  in  a  court  of  competent  jurisdic- 
tion. 

Exceptions.  But  the  person  may  be  tried  again  on  his  own  motion, 
after  conviction.*  So,  in  case  of  mistrial,^  or  if  a  motion  in  arrest  of 
judgment  is  sustained,"  or,  if  the  jury  disagree.''  Courts  may,  for 
reasons  fixed  by  law,  discharge  the  jury  and  empanel  a  new  one.* 
An  appeal  is  allowed  to  the  State  in  revenue  cases,  but  not  in  any 
case  involving  the  life  or  liberty  of  any  person.' 

§  138.  Attainder. '^'^  Most  States  have  a  general  constitutional 
provision  that  the  legislature  shall  pass  no  bill  of  attainder,  ^^  or,  that 
no  person  can  be  attainted  of  treason  or  felony  by  the  legislature.^^ 
So,  in  one,  of  treason  alone.*' 

§  139.  Miscellaneous.  The  Constitutions  of  two  States  forbid 
the  issue  of  commissions  of  oyer  and  terminer  and  gaol  delivery.** 
By  that  of  Nebraska  the  writ  of  error  is  declared  a  writ  of  right  in 

1  Ariz.*  427;  lo.  1,  12;  Mich.  6,  29;    judges  that  a  bill  of  attainder  would 

be  valid  although  it  condemned  a  man 
to  death  for  treason  without  a  hearing, 
and  himself  perished  by  the  same  act 
of  attainder  that  he  had  procured. 
There  is  no  such  thing  as  an  executive 
attainder;  for  this  reason  President 
Roosevelt's  order  that  the  negro  sol- 
diers in  Texas  should  be  both  dis- 
charged and  forever  precluded  from 
holding  any  civil  office  was  unconstitu- 
tional in  its  latter  part. 

'1  Ala.  14;  Ariz.*  Bill  of  Rts.  19; 
Ark.  2,  17;  Cal.  1,  16;  Fla.  Decln.  of 
Rts.  17;  Ga.  1,3,2;  Ida.  1,  16;  lo.  1, 
21;  Me.  1,  11;  Mich.  4,  43;  Minn.  1, 
11;  N.  D.  16;  Neb.  1,  16;  Nev.  1,  15; 
N.  J.  4,  7,  3;  N.  M.*  1851,  July  12, 
§  14;  Okla.  2,  15;  S.  C.  1,  8;  Tex.  1, 
16;  Utah  1,  18;  Va.  58;  Wash.  1,  23; 
W.  Va.  3,  4;  Wis.  1,  12.  Compare 
U.  S.  1,  9,  10,  forbidding  such  bills 
both  to  States  and  the  nation.  See 
also  §  142.  This  might  be  implied  in 
other  States  from  §  127. 

1-  Col.   2,   9;    Ct.    1,   15;    Ky.   20; 
Mass.  1,  25;    Md.  Decln.  of  Rts.  18;. 
Mo.  2,  13  ;  Mon.  3,  9 ;  Pa.  1,  18;  S.  D. 
6,  22;    Vt.  2,  20. 

13  Ala.  1,  19. 

"  Del.  1,  14;  Pa.  1,  15. 


N.  H.  1,  16;  N.  J.  1,  10;  N.  M.*  50,  9; 
95,  1;  R.  I.  1,  7;  Tex.;  Okla. 

2  Mo.  2,  23. 

3  Mich.,  Miss.,  N.  M.* 
*  Ga.,  La. 
°  Ga.,  La.,  Mo. 

6     Ljj 

'  Ark.,  Col.,  Mo.,  Wy. 
«  Ala. 

»  Va.  88. 

"  Bills  of  attainder  were  the  usual 
method  by  which  arbitrary  kings  or 
parUaments  evaded  the  right  to  law 
described  in  §§  70,  131.  They  could 
only  be  passed  by  Parliament,  not 
by  the  Crown,  but  were  used  by 
the  Stuart  kings  particularly  as  a 
method  of  getting  rid  of  objectionable 
subjects.  In  effect,  of  course,  they 
were  a  trial  and  conviction  without 
hearing,  witnesses,  jury,  or  other 
process  of  law,  —  by  mere  legislative 
act,  and  commonly  involved  both 
death  and  forfeiture  of  property. 
Impeachment  differed  from  attainder 
principally  in  that  it  was  found  by 
the  Commons  and  tried  by  the  laws 
and  applied  only  to  a  political  person- 
age. Thomas  Cromwell  in  the  name 
of  Henry  VIII.  got  a  decision  from  the 


180  THE   STATE   CONSTITUTIONS  [BOOK    III 

all  cases  of  felony.*  So,  in  Wisconsin,  tiie  writ  shall  never  be  pro- 
hibited by  law.-  In  Kentucky,  the  le<;islature  are  authorized  to  pass 
laws  regulating  writs  ot"  error  in  eriininal  or  penal  cases. ^  And  also, 
laws  regulating  the  right  of  challenge  of  jurors  therein. 

Article  14.     Rights  after  Trial 

§  140.  Fines  and  Costa  J  The  Constitutions  of  nearly  all  states 
provide  that  excessive  fines  shall  not  be  imposed  nor,  except  in 
Connecticut  and  Vermont,  cruel  or  unusual  punishments  be  inflicted."' 
Nor,  in  one,  excessive  costs." 

No  person  shall  be  compelled  to  pay  costs  except  after  conviction 
on  final  trial.''  In  Texas  the  legislature  may  by  law  require  fines 
and  costs  in  prosecutions  for  misdemeanors  to  be  discharged  by 
manual  labor  in  default  of  payment.^ 

So,  all  punishments  and  penalties  should  be  proportioned  to  the 
offence.®  "Indefinite  imprisonment"  is  forbidden. ''^  And  in  six, 
reformation,  not  vindictive  justice,  is  declared  to  be  the  principle 
of  the  penal  code.**    Further,  it  is  specially  declared  that  sanguinary 

»  Neb.  1,23.  *  Ala.  15;    Ariz.*  Bill  of  Rts.   10; 

2  Wis.  1,  21.  Ark.  2,  9;  Cal.  1,  6;  Col.  2,  20;  Ct.  1, 

3  Ky.  2,  39;  La.  10.  13;    Del.  1,  11;    Fla.  Decln.  of  Rts.  8; 
"  Copied  from  U.  S.  Amt.  8.     This   Ga.  1,  1,9;  Ida.  1,6;  Ind.  1,  16;  lo.  1, 

principle  goes   back  to  Magna  Carta,  17;    Kan.  Bill  of  Rts.  9 ;    Ky.  17;    La. 

Cap.  20.     "A  freeman  shall  only  be  12;    Mass.  1,  26;    Md.  Decln.  of  Rts. 

amerced  .  .  .  after     tlie     manner     of  25;  Me.  1,9;  Mich.  6,  31 ;   Minn.  1,5; 

the    offence    .    .    .    according    to     the  Miss.  28 ;  Mo.  2,  25 ;  Mon.  3,  20 ;  N.  C. 

hcinousness  of  it,"   but  the  fines  re-  1,  14;   N.  D.  6;   Neb.  1,  9;   Nev.  1,  6; 

ferred  to  in  Magna  Carta  were  assessed  N.  H.  1,  33;  N.  J.  1,  15;  N.  M.*  95,  1 ; 

by  the  oath  of   "honest  men  of  the  1851,  July  12,  §  11;   N.  Y.  1,  5;   O.  1, 

neighbourhood."      The    constitutional  9;    Okla.  2,  9;   Ore.  1,  16;    Pa.  1,  13; 

provision  refers  only  to  fines  imposed  R.  I.  1,  8;    S.  C.  1,  19;    S.  D.  6,  23; 

in  courts  of  law  or  by  statute.     The  Tenn.  1,  16;    Tex.  1,  13;  Utah  1,  9; 

exact  provision  is  found  in  the  Bill  of  Va.    1,  9;    Vt.  2,  32;    Wash.    1,   14; 

Rights,  paragraph  10,  and  on  this  our  W.  Va.  3,  5;  Wis.  1,  6;  Wy.  1,  14. 

provision  is  based,  it  being  a  favorite  The    clause    about    punishment    is 

use  of  the  Stuart  Icings.     "Cruel  and  omitted  in  a  few.     (Ct.,  Vt.) 

unusual  punishments"  were  also  for-  *  N.  C. 

bidden  by  the  Bill  of  Rights;  this  is  a  ^  Fla.  Decln.  Rts.  14;   Ga.  1,  1,  10; 

provision  aimed  at  torturing,  maiming,  N.  C.  1,  11. 

and     banishment.       No     punishment  *  Tex.  16,  3. 

remains  in  any  of  the  States  except  *  111.2,11;    Ind.;  Me.;  N.  H.  1,  18; 

death    and    imprisonment    with    the  Neb.  1,  15;  Ore.;  R.  I.;  W.  Va. 

exception    of    the    whipping    post    in  "  Fla. 

Delaware;     but   no   mode   of   putting  '^  Ind.  1,  18;   Mon.  3,  24;   N.  C.  11, 

condemned  persons  to  death  under  a  2 ;  N.  H. ;  Ore.  1,  15 ;  Wy.  1,  15. 
criminal  statute  is  "cruel  or  unusual" 
under  the  court  decisions. 


PAKT   l]  BILL   OF   RIGHTS:     CRIMINAL  181 

laws  shall  not  be  passed.'  But  the  death  penalty  is  in  INIontana 
expressly  preserved.  In  all  criminal  cases  when  the  defendant  is 
insolvent  or  discharged,  the  legal  costs  and  expenses,  including 
officers'  fees,  must  be  paid  by  the  counties.^ 

That  whipping  or  corporal  punishments  shall  not,  in  two,  be 
inflicted.^  No  mechanical  trade  shall  be  taught  to  convicts  in  the 
State  prison,  except  the  manufacture  of  those  articles  of  which  the 
chief  supply  for  home  consumption  is  imported  from  other  States.* 
But  in  others,  provision  is  made  by  the  Constitution  for  punishment 
by  hard  labor.^  In  several,  the  Constitution  forbids  the  letting 
out  of  convict  labor  by  contract.^  In  New  York,  also,  the  product 
or  profit  may  not  be  sold,  but  may  be  used  by  the  State  or  in 
public  institutions. 

No  citizen  shall  be  outlaw^ed.'  Banishment  from  the  State  or 
transportation  shall  not  be  allowed  as  a  punishment  for  crime.  ^ 

The  gaols  shall  be  constructed  with  regard  to  the  health  of  the 
prisoners.®  So,  the  erection  of  secure  and  comfortable  prisons,  and 
the  humane  treatment  of  prisoners,  shall  be  provided  for.'" 

In  North  Carolina,  the  Constitution  provides  that  death,  imprison- 
ment, fines,  removal  from  office,  and  disqualification  for  office,  shall 
be  the  only  punishments  known  to  the  laws;  convict  labor  may 
be  employed  on  public  w^orks,  or  farmed  out;  but  no  convict 
sentenced  for  murder,  manslaughter,  rape,  or  arson  shall  be  farmed 
out;  murder,  arson,  burglary,  and  rape  may  be  made  punishable 
by  death. ^'  In  Vermont,  punishment  for  crimes  not  capital  should 
be  by  hard  labor.'-  Sentence  of  labor  on  the  highways  or  public 
works  may  be  imposed.'^  And  convicts  may  be  hired  out  under 
State  supervision.'*  INIichigan  makes  provision  in  the  Constitution 
for  indeterminate  sentences  and  release  of  prisoners  on  parole.'^ 

*  Md.  Decln.  of  Rts.  16  ;  Me. ;  N.  H.  State  for  any  purpose,  without  his 
2  Fla.  16,  9  ;  Amt.  1894.  consent,  except  by  due  process  of  law ; 
^Ga.  1,  1,  7;   S.  C.  1,  19.  but    nothing    in    this    provision    shall 

*  Mich.  18,  3.  prevent  the  operation  of   extradition 

*  Cal.  10,  6;  Ky.  153;  N.  C.  11,  1;  laws,  or  the  transporting  of  persons 
Vt.  2,  37.  sentenced  for   crime   to  other  States 

"  Cal. ;  Ky. ;  Mon.  18,  2 ;  N.  Y.  3,  for  the  purpose  of  incarceration." 
29;  Wash.  2,  29.  Okla.  2,  29. 

'  Tex.  1,  20.  «  Del. 


8  Ala.  1,  30;  Ark.  2,  21;  Ga.  1,  1, 
7 ;  111. ;  Kan.  Bill  of  Rts.  21 ;  Neb. ;  O. 
1,  12;   Tex.;  W.  Va. ;  Vt.  1,  21. 

"  No  person  shall  be  transported 
out  of  the  State  for  any  offence  com- 
mitted within  the  State,  nor  shall  any 
person    be    transported    out     of    the 


Tenn.  1,  32 ;  Wy.  1,  16.    See  §  124. 
1  N.  C.  11,  12. 
-  Vt.  2,  37. 
3  S.  C.  5,  33 ;  12,  6. 
*  S.   C.    12,   9. 
=  Mich.  1901,  p.  391. 


1S2  THE   STATE   CONSTITUTION'S  [BOOK   III 

For  contempt,  sec  §  GOS. 

§  141.  A\r  Post  Facto  Laics.^  These  arc,  in  most  of  tlie  States, 
forbidden  by  the  Constitution.^  So,  "no  person  can  be  punished 
but  by  virtue  of  a  law  ah'cady  estabhshcd  or  promulgated  prior 
to  the  offence."  ^  Conversely  the  repeal  or  amendment  of  any 
criminal  statute  shall  not  affect  the  prosecution  or  punishment  of 
any  crime  committed  before  sucli  repeal  or  amendment.^ 

§  142.  Corruption  of  Blood.*  The  Constitutions  of  most  States 
provide  that  no  conviction  shall  work  corruption  of  blood  or  for- 
feiture of  estate."  But  in  three,  it  seems  that  there  may  be  forfeiture 
of  estate  during  the  life  of  the  offender.' 

§  143.  Suicides.  The  Constitution  declares  that  the  estates  of 
suicides  are  not  forfeit.*^  Such  estates  descend  as  in  cases  of  natural 
death.® 

§  144.  Dcodands  are  in  seven  States  abolished  by  the  Constitu- 
tion.'" 

'  The  words  ex  post  facto  are  here  Utah   1,   18;    Va.   58;  Wash.    1,  23; 

used  as   the  equivalent    of   retroactive  W.  Va.  3,  4;    Wis.  1,  12;    Wy.  1,  35. 

and  retrospective;    and  the  law  is  here  So,  both  as  to  States  and  nation,  in 

applied  only  to  criminal  offences.     For  U.  S.  C.  1,  9  (4);   1,  10  (1). 

civil  laws  of  a  similar  nature,  see  §§  392,  ^  Ala.  7. 

393,    Laws   impairing   the   obligations  *  Fla.  3,  32. 

of   contracts.     The   provision   against  ^  Compare  U.  S.  C.  3,  3.     The  at- 

ex  post  facto  laws  does  not  expressly  tempt  to  enact  a  statute  working  cor- 

appcar  in  the  English  Bill  of  Rights,  ruption  of  blood   would   probably  be 

though  it  was  a  familiar  abuse  under  held  unconstitutional  in  all  the  States 

the  Stuart  kings.     Ex  post  facto  has  as  part  of  the  unwritten  Constitution, 

been  decided  by  the  U.   S.   Supreme  This,  and  the  following  two  sections 

Court  to  refer  only  to  criminal  statutes  are   probably,   therefore,   unnecessary, 

whereby   a   man   is   punished   for   an  "  Ala.   19;    Ark.  2,   17;    Col.  2,  9; 

offence  under  a  law  passed  after  the  Ct.  9,  4 ;    Del.  1,  15 ;    Fla.  Decln.  Rts. 

offence    was    committed.      They    are  23;   Ga.  1,  2,  3;    Ida.  5,  5  (the  clause 

forbidden  by  the  U.  S.  Constitution,  is  clumsily  worded,  so  as  to  apply  only 

Art.  1,  Sec.  9,  Clause  3,  to  the  United  to  treason  or  "attainder");    IH.  2,  11; 

States,  and  by  Sec.  10,  Clause  1,  to  the  Ind.  1,  30;    Kan.  Bill  of  Rts.  12;    Ky. 

States,  in  the  Federal  Constitution.  20 ;   ]\Id.  Decln.  of  Rts.  27 ;   Me.  1,11; 


2  Ala.  22;  Ariz.*  Bill  of  Rts.  19 
Ark.  2,  17;  Cal.  1,  16;  Col.  2,  11;  Fla 
Decln.  of  Rts.  17;  Ga.  1,  3,  2;  Ida.  1 
16;  111.  2,  14;  Ind.  1,  24;  lo.  1,  21 
Ky.  19;  La.  166;  Mass.  1,  24;  Md 
Decln.  of  Rts.  17;  Me.  1,  11;  Mich.  4 
43;  Minn.  1,  11;  Miss.  16;  Mo.  2,  15 
Mon.  3,  11;  N.  C.  1,  32;  N.  D.  16 
Neb.  1,  16;  Nev.  1,  15;  N.  H.  1,  23 
N.  J.  4,  7,  3;  N.  M.*  1851,  July  12 
§  14;  O.  2,  28;  Okla.  2,  15;  Ore.  1 
21;  Pa.  1,  17;  R.  I.  1,  12;  S.  C.  1,  8 
S.  D.  6,  12;   Tenn.  1,  11;   Tex.  1,  16 


Minn.  1,  11;  Mo.  2,  13;  Mon.  3,  9; 
N.  C.  4,  5  ;  Neb.  1,  15 ;  O.  1,  12  ;  Okla. 
2,  15;  Ore.  1,  25;  Pa.  1,  19;  S.  C.  1, 
8;  Tenn.  1,  12;  Tex.  1,  21;  Wash.  1, 
15;  W.  Va.  3,  18;  Wis.  1,  12. 

'  Del.,  Ky.,  Pa. 

«  N.  H.  2,  88;  Pa.  1,  19;   Vt.  2,  38. 

»  Col.  2,  9;  Del.  1,  15;  Ky.  21; 
Mo.  2,  13;  Mon.  3,  9;  N.  H. ;  Pa.; 
Tenn.  1,  12;  Tex.  1,21;  Vt. 

10  DeL  1,  15;  Ky.  21;  Mo.  2,  13; 
N.  H.  2,  88;  Pa.  1,  19;  Tenn.  1,  12; 
Vt.  2,  38. 


PART   l]  BILL   OF   KIGIITS :     CRIMINAL  183 

§  145.  Appeals.^  By  the  Constitution  of  Texas  and  Virginia 
the  State  has  no  right  of  appeal  in  criminal  cases,-  but  the  defendant 
has.^ 

§  145.  Fees  and  Cosis.'^  No  accused  person  before  final  judg- 
ment shall  be  compelled  to  advance  money  or  fees  to  secure  the 
rights  herein  guaranteed.^ 


Article  15.    Special  Provisions  Coxcerxing  Criminal 

Offences 

§  150.  Treason^  is  by  the  Constitutions  of  most  of  the  States 
declared  to  consist  only  in  levying  war  against  the  State,  adhering 
to  its  enemies,  and  giving  them  aid  and  comfort ;  there  must  be  two 
witnesses  to  the  same  overt  act,  in  order  to  convict,  or  a  confession 
in  open  court.  ^ 

§  151.  Duelling.  By  the  Constitutions  of  many  States  duelling 
is  made  a  cause  of  disfranchisement  and  disqualification  to  hold 
office.^  And  in  five,  it  is  made,  by  the  Constitution,  a  criminal 
offence.® 

The  governor  may  pardon  it  after  five  years.  ^^ 

*  See  Art.  70,  and  §  137.  was  that  the  imagination  must  be  at- 
^  Tex.  5,  26;  Va.  88.  See  §  137.  tended  with  the  intent  or  purpose  as 
^  Utah  1,  12;  Wash.  1,  22.  manifeeted  by  some  overt  act.     Still, 

*  This  is  a  new  provision  although  the  mental  act  constituted  a  treason, 
in  the  Bill  of  Rights,  threats  and  not  the  phj^sical  one.  Thus,  the  regi- 
promises  of  fines  and  forfeitures  of  cides  were  tried  not  for  beheading  King 
particular  persons  before  conviction  Charles,  but  for  compassing  his  death, 
are  declared  illegal  and  void.  of  which  the  killing  was  only  evidence. 

'  Utah    1,    12;    Wash.   1,    22.     See  '  Ala.  18;    Ark.  2,  14;    Cal.  1,  20; 

§  140.  Col.  2,  9;    Ct.  9,  4;    Del.  6,  3;    Fla. 

«  Copied  from  U.  S.  C.  3,  3.     This  Decln.  of  Rts.  23 ;   Ga.  1,  2,  2 ;   Ida.  5, 

is  also  an  English  constitutional  prin-  5;     Ind.    1,  28-29;    lo.    1,   16;    Kan. 

ciple,    though    forfeiture    for    treason  Bill  of  Rts.   13;    Ky.  229;    La.   162; 

was    only    abolished    under    Victoria.  Me.  1,  12;    Mich.  6,  30;    Minn.  1,  9; 

The  principle  requiring  two  witnesses  Miss.  10 ;   Mo.  2,  13 ;   Mon.  3,9;  N.  C. 

is  as  old  as  Edward  VI.  and  they  were  4,  5;    N.  D.  19;    Neb.  1,  14;    Nev.  1, 

required   to    be    confronted    with   the  19;   N.  J.  1,  14;    Okla.  1,  16;   Ore.  1, 

person  charged,  although  this  statute  24;  S.C.I,  22;  S.  D.  6,  25 ;  Tex.  1,22; 

was  evaded  or  disregarded  under  Queen  Utah  1,  19 ;  Wash.  1,  27 ;  W.  Va.  2,  6 ; 

Elizabeth  and  the  Stuarts.      (Taswell-  Wis   1,  10;  Wy.  1,  26. 

Langmead,   p.  308.)     In  England,  of  «  See  §§  223,  254,  257.     It  will  be 

course,  treason  might  and  usually  did  noticed  that  this  statute  is  peculiar  to 

rather    consist    in    words    or    writings  the  Southern  States, 

than  in  acts.  »  Ala.  86;    Ark.  19,  2;    Ga.  2,  4,  2; 

"Imagining  the  Kings'  death"  was  Ky.  239;  Tenn.  9,  3. 

treason  in  England,  but  the  better  law  "  Ky.    See  §  160. 


184  THE    STATE    CONSTITUTIONS  [I'.OOK    III 

§  152.  Bribery  '  of  an  officc-holdcT,  whether  aocomphshed  or 
attempted,  is  made  a  felony  -  in  the  person  giving  or  offering  the 
bribe,  by  the  Constitution  of  several  States.^  And  usually  also  in  the 
office-holder  receiving  or  offering  to  receive  the  bribe.^  So,  of  a 
member  of  the  legislature  bribed,^  or  offering  or  seeking  to  bribe." 

Bribery  at  elections  is,  by  the  Constitution  of  several  States,  made 
a  criminal  offence  in  both  parties.'  So,  fraud,  or  other  wilful  and 
corrupt  violation  of  election  laws.**  "Any  person  who  shall  directly 
or  indirectly  offer,  give  or  promise  any  money  or  thing  of  value, 
testimonial,  privilege  or  personal  advantage,  to  any  executive  or 
judicial  officer  or  member  of  the  Legislative  Assembly,  to  influence 
him  in  the  performance  of  any  of  his  official  or  public  duties,  shall 
be  deemed  guilty  of  bribery,  and  be  punished  in  such  manner  as 
shall  be  provided  by  law."  ° 

And  in  many  States  bribery  is  cause  of  disfranchisement  or  dis- 
qualification for  office.^" 

§  153.  Lobbying  is  declared  a  felony  by  the  Constitution  in  two 
States."  So, no  State  or  county  officer  shall  accept  a  fee,  reward,  etc., 
for  lobbying.'^  Lobbying  is  in  California  defined  to  be  the  seeking 
to  influence  the  vote  of  a  member  of  the  legislature  by  bribery, 
promise  of  reward,  intimidation,  or  other  dishonest  means. 

§  154.  Corrwpt  Legislation.  No  State  officer  or  member  of  the 
legislature  shall  directly  or  indirectly  receive  a  fee  or  be  engaged  as 

^  See  §  154.     The  tendency  of  mod-  who  shall  solicit,  demand,  or  receive, 

ern    statutes    is    to    make    bribery   a  or  consent  to  receive,  directly  or  in- 

felony  in  both  the  person   giving  and  directly,    for   himself   or   for   another, 

the  person  offering  the  bribe,  and  more  from    any    company,    association,   or 

elaborate  statutes  are  being  devised  to  person,  any  money,  office,  appointment, 

cover  all   cases  of  political  corruption  employment,    or    personal    advantage 

by  influence  or  otherwise.  for  his  vote  or  influence  or  withholding 

^  A  penal  offence  or  a  misdemeanor  the  same,  or  with  the  understanding 

only  (La.).  that  his  vote,  etc.,  shall  be  in  any  way 

^  Ark.   5,   35 ;     Col.   5,   4,1   and  42 ;  influenced  thereby,  or  who  shall  solicit 

Del.  2,  22;   La.  183;   Md.  3,  50;  N.  Y.  or  demand  such  money  or  other  ad- 

13,  2  and  3;    Pa.  3,  30;    Tex.  16,  41;  vantage  for  another,  or  give  or  with- 

W.  Va.  6,  45.  hold  his  vote  in  consideration  thereof, 

*  Ark.,  La.,  Md.,  Nev.,  N.  Y.,  Tex.,  is  guilty  of  bribery  and  shall  incur  the 
W.  Va.  disabilities  and  penalties  provided  in 

*  Cal.  4,  35 ;  Col.  12,  6 ;  La. ;  Md. ;  the  Constitution  for  such  offence,  and 
N.  Y. ;  Pa.  3,  29-31 ;  Tex. ;  W.  Va.  such   additional    punishment    as    may 

^  Ala.  be    provided    by   law.      And    so,    any 

^  Ark.  3,  6 ;    Del.  5,  7 ;    Fla.  4,  9 ;  person  who  shall  directly  or  indirectly 

Xa. ;  Nev.  4,  10 ;  Tenn.  10,  3.  offer  such  money  (Ala.  79,  80 ;  Pa.). 

»  Ark.  "  See  §§  223,  255. 

«  Mon.  5,42;Pa.;S.D.3,2S;Wy.3,  ''  Cal.  4,  35;  Ga.  1,  2,  5. 

43.     So,  a  member  of  the  legislature  "  Ala.  101.     See  also  §  154. 


PART    l]  BILL    OF    RIGHTS:    CRIMINAL  185 

counsel,  agent,  or  attorney  in  the  prosecution  of  any  claim  against 
the  State/  or  in  advocating  any  bill  or  measure.^  Upon  clue  proof 
thereof  he  shall  forfeit  his  seat.^ 

So,  the  offence  of  corrupt  solicitation  of  members  of  the  Legisla- 
tive Assembly,  or  of  public  officers  of  the  State,  or  of  any  municipal 
division  thereof,  and  the  occupation  or  practice  of  solicitation  of  such 
members  or  officers,  to  influence  their  official  action,  shall  be  defined 
by  law,  and  shall  be  punishable  by  fine  and  imprisonment.^ 

Any  governor  of  this  State  who  asks,  receives,  or  agrees  to  receive 
any  bribe  upon  any  understanding  that  his  official  opinion,  judg- 
ment, or  action  shall  be  influenced  thereby,  or  who  gives  or  offers,  or 
promises  his  official  influence  in  consideration  that  any  member  of 
the  legislative  assembly  shall  give  his  official  vote  or  influence  on 
any  particular  side  of  any  question  or  matter  upon  which  he 
may  be  required  to  act  in  his  official  capacity,  or  who  menaces  any 
member  by  the  threatened  use  of  his  veto  power,  or  who  offers  or 
promises  any  member  that  he,  the  sa!d  governor,  will  appoint  any 
particular  person  or  persons  to  any  office  created  or  thereafter  to  be 
created,  in  consideration  that  any  member  shall  give  his  official  vote 
or  influence  on  any  matter  pending  or  thereafter  to  be  introduced 
into  either  house  of  said  legislative  assembly,  or  who  threatens  any 
member  that  he,  the  said  governor,  will  remove  anv  person  or  persons 
from  office  or  position,  with  intent  in  any  manner  to  influence  the 
action  of  said  member,  shall  be  punished  in  the  manner  now,  or 
that  may  hereafter  be,  provided  by  law,  and  upon  conviction  thereof 
shall  forfeit  all  right  to  hold  or  exercise  any  office  of  trust  or  honor  in 
this  State.^ 

No  member  of  the  legislature  can  be  interested  directly  or  in- 
directly in  any  contract  with  the  State  or  a  county  thereof  authorized 
by  a  law  passed  during  his  term,"  or  within  one  year  thereafter.^ 

The  governor  is  forbidden  to  receive  any  compensation  or  promise 
thereof  for  any  service  rendered  or  performed  while  governor,  or  to 
be  rendered  thereafter.^ 

"Any  member  of  the  legislature  who  shall  give,  offer,  or  promise 

>  Ore.  15,  7;  R.  I.  4,  4;  Vt.  2,  19.  «  111.  4,  15;   Mich.  4,  18;  Miss.  109; 

2  N.  H.  2,  7;  Vt.  Neb.  3,  12;    S.  D.  3,  12;   Tex.  3,  IS; 

8  N.  H.  W.  Va.  6,  15.     Compare  also  §  303. 

*  Ala.  81 ;   Mon.  5,  43;   S.  D.  3,  28;        '  111.,  Mich.,  Miss.,  Neb.,  S.  D. 
Wash.  2,  30;  Wy.  3,  45  ;  Pa.  3,  31.  «  Tex.  4.  6. 

«  N.  D.  3,  81;  S.  D.  4,  11;  Wy.  4, 
10. 


ISG  THE    STATE    CONSTITUTIONS  [bOOK    III 

his  vote  in  favor  of  or  against  any  measure,  in  consideration  that  any 
other  member  shall  give  or  promise  his  vote  on  another  measure, 
shall  be  guilty  of  solicitation  of  bribery,  or  bribery  [if  the  thing  be 
accomplished] ;  and  such  member  shall  be  expelled,  and  not  there- 
after be  eligible  for  the  legisla'ure,  and  be  liable  to  such  further 
penalty  as  may  be  prescriljed  by  law,"  ^ 

Evidence.  By  the  Constitutions  of  several,  any  person  may  be 
compelled  to  testify  in  any  investigation  or  proceeding  to  esta})lish 
bribery  or  lobbying  offences  under  these  three  sections;  but  such 
testimony  cannot  be  afterwards  used  against  him,  except  to  prove 
perjury.^  And  the  person  so  testifying  is  exempted  from  punish- 
ment for  his  own  offence.^    He  may  also  testify  in  his  own  behalf.* 

§  155.  Special  Crimes.  The  Constitution  of  Texas  provides 
that  the  legislature  shall  provide  by  law  for  defining  and  punishing 
barratry.^ 

Gamhling  is  by  the  Constitution  of  Louisiana  declared  to  be  a  vice, 
and  laws  shall  be  passed  to  suppress  it.** 

Prize  fighting  is  forbidden.^ 

Polygamy  and  bigamy  are  made  crimes  in  the  Constitution.^ 

§  156.  Embezzlement  of  public  funds  or  defalcation  in  public 
office  or  trust  is,  in  some,  declared  a  felony  by  the  Constitution." 
So,  misappropriation  of  the  State  or  school  funds.^"  It  is  a  penal 
offence  to  borrow,  or  divert  from  its  purpose,  any  State  fund.^^  Or 
for  a  public  officer  to  make  a  profit  out  of  public  money,  or  to  use  it 
for  any  purpose  not  authorized  by  law.^- 

*  Col.  5,  40;  Mon.  5,  41;  N.  D.  40;  moral  obligation;  a  State  when  once 
Wy.  3,  42.  admitted  comes  in  with  all  the  rights 

2  Cal. ;  La.  174 ;  Md.  3,  50 ;  N.  Y.  of  the  older  States.  So  far  as  this 
13,  3  ;  Pa.  3,  32  ;  S.  D.  3,  28 ;  Wash.  2,  section  is  concerned,  Utah  could  prob- 
30 ;  W.  Va.  6,  45 ;  Wy.  3,  44.  See  also  ably  amend  her  Constitution  and  re- 
§  239.  establish  Mormonism  to-morrow. 

3  Md.,  W.  Va.  »  Cal.  4,  21 ;   Ida.  18,  2;  Amt.  Nev. 

*  N.  Y.  13,  4.  4,  10 ;   S.  C.  10,  12. 
«  Tex.  16,  29.    See  I.  Taylor,  567,  for        '°  Minn.  9,  12. 

the  origin  of  this  offence.  "  Tex.  8,  7.      The    notion    that    an 

^  La.  188.     See  §  426.  appropriation  could  be  limited  to  any 

^  S.  C.  8,  12.  definite  object  was  only  established  in 

*  Ida.  1,  4.  See  also  §  41.  The  England  as  late  as  Charles  II.  The  use 
enabling  acts  admitting  the  eight  new  of  public  funds  for  other  purposes  than 
Western  States  usually  provided  they  were  originally  raised  for,  although 
against  polygamy  on  account  of  the  probably  contrary  to  Magna  Carta 
Mormon  influence,  and  this,  with  other  itself,  is  usual  in  other  countries,  so 
provisions  concerning  schools,  etc.,  was  much  so  that  it  has  been  given  a 
made  forever  irrepealable  without  the  special  name,  virement,  in  France.  See 
consent    of    the    United    States ;    see  Art.  32. 

Utah  3,  1.     This  is  probably  only  a        ^^  Ark.  16,  3;    Cal.  11,  17;    Col.  10, 


PART   l] 


BILL   OF   RIGHTS  :    CRIMINAL 


187 


§  157.  War  Exemption.  By  the  Constitutions  of  two  States,  no 
person  shall  be  prosecuted  in  any  civil  or  criminal  action  for  any 
act  done  by  him  during  the  war  of  secession  under  orders,  or  in 
pursuance  of  military  authority  vested  in  him  by  the  United  States, 
the  Confederate  States,  or  the  State.  ^  The  Florida  provision  is 
omitted  in  the  new  Constitution. 

§  158.  Felony.  The  Constitution  of  Colorado  defines  felony 
to  mean  any  criminal  offence  punishable  with  death  or  imprisonment 
in  the  penitentiary.- 


Article  16.    Pardons 

§  160.  Pardon  Power.^  By  the  Constitution  of  most  States,  the 
governor  has  power  to  grant  pardons  and  commutations  *  of  sentence 
after  conviction.^    And  so  in  all  the  territories,  by  U.S.R.S.  1841. 

In  some,  the  governor  may  grant  pardons  as  above  only  by  and 
with  the  advice  of  the  Council,''  or  Senate,^  or  Board  of  Pardons.^ 


13;  Ga.  5,  2,  5;  7,  9,  1 ;  Ida.  7,  10; 
Ky.  173;  Mo.  10,  17;  Mon.  12,  14; 
Okla.  10,  11;  Pa.  9,  14;  S.  D.  11,  11; 
Utah  13,  8;  AVash.  11,  14;  Wy.  11,  14; 
15,  8. 

'  Mo.  14,  2;  W.  Va.  8,  35.  The 
14th  Amendment  inferentially  terms 
rebellion  a  crime.  Presumably  a 
Confederate  soldier  or  officer  would  be 
liable  for  acts  committed  during  the 
Revolution,  even  if  acts  of  war, —  civilly, 
if  not  criminally ;  but  there  are  hardly 
any  instances  of  such  suits  being 
brought,  though  there  are  one  or  two 
cases  where  damages  have  been  re- 
covered for  acts  improperly  committed, 
such  as  seizures  of  goods  not  contra- 
band, or  forfeiture  of  property  without 
due  process  of  law.  The  statutes  and 
court  decisions  of  the  States  in  rebellion, 
except  in  so  far  as  they  concern  such 
political  matters,  have  been  declared 
valid  by  the  U.  S.  Supreme  Court. 

-  Col.  18,  4.  And  the  word  is  always 
so  used  in  this  book.  This  is  a  proper 
definition,  at  least  in  the  United 
States;  there  being  no  longer  any 
forfeiture  or  corruption  of  blood. 

3  Compare  U.  S.  C.  2,  2.  The  pardon 
power  is  not  inherent  in  the  executive, 
like  the  power  to  punish  for  contempts  in 
the  judiciary,  but  it  may  be  questioned 
whether  it  would  not  be  exerted  even 


in  the  absence  of  a  statute.  All  the 
States  have  such  statutes,  however,  and 
the  tendency  is  more  and  more  to 
relieve  the  Executive  of  the  responsi- 
bility by  creating  boards  of  pardons. 
The  granting  of  pardons  before  con- 
viction became  an  abuse  under  the 
Stuarts. 

*  Nothing  is  said  about  commuta- 
tions of  sentence  (Kan.,  Mass.,  Md., 
Minn.,  Miss.,  Neb.,  N.  H.,  N.  J.,  R.  I., 
Tenn.,  Vt.)  "Under  the  regulations 
and  restrictions  prescribed  by  law : " 
(N.  Y.,  O.,  Ind.,  111.,  Mich.,  Wis.,  lo., 
Kan.,  Va.,  Neb.,  Del.,  N.  C,  Mo.,  Ark., 
Cal.,  Ore.,  Col.,  Ga.,  Ala.,  N.  D.,  S.  D., 
Wy.) 

*  Ala.  124  ;  Ariz.*  1093 ;  Ark.  6,  18 ; 
Cal.  7,  1 ;  Col.  4,  7 ;  Ga.  5,  1,  12 ;  111. 
5,13;  Ind.  5.  17;  lo.  4,  16;  Kan.  1,  7; 
Ky.  77 ;  Md.  2,  20 ;  Mich.  5,  11 ;  Minn. 
5,  4;  Miss.  124;  Mo.  5,  8;  N.  C.  3,  6; 
N.  D.  76;  Neb.  5,  13;  N.  Y.  77;  O.  3, 
11;  Okla.  6,  10;  Ore.  5,  14;  S.  C.  4, 
11;  S.  D.  4,  5;  Tenn.  3,  6;  Tex.  4,  11; 
Va.  73;  Vt.  2,  11;  Amt.  8;  Wash.  3,9; 
W.  Va.  7,  11 ;  Wis.  5,  6;  Wy.  4,  5. 

«  Mass.  2,  2,  1,  8;  Me.  5,  1,  11; 
N.  H.  2,  51. 

'  R.  I.  C.  Amt.  2. 

«  Fla.  1895,  p.  366,  Del.  7,  1 ;  Minn. 
1895,  2;  S.  D.  4,  5;  N.  J.  5,  10;  S.  C. 


188  THE    STATE   CONSTITUTIONS  [BOOK    III 

Pov.'er  to  pardon,  as  above,  is,  in  otluTs,  vested  in  the  governor, 
judges  of  the  Supreme  Court,  and  attorney-general,  or  a  majority  of 
them,  of  which  the  governor  must  be  one.'  Governor,  secretary  of 
state,  and  attorney-general."'^  Governor,  secretary  of  state  com- 
missioner of  agriculture,  controller,  attorney-general.''  Governor, 
secretary  of  state,  attorney-general  and  auditor.'  Presiding  judge, 
secretary  of  state,  and  attorney-general.^  Governor,  chief  justice, 
and  attorney-general.® 

In  other  States,  pardons  are  issued  by  the  governor,  upon  written 
recommendation  of  the  lieutenant-governor,  secretary  of  state,  secre- 
tary of  internal  affairs,  and  attorney-general,  or  any  three  of  them,' 
or  a  majority  of  the  board, ^  as  above,''  the  lieutenant-governor, 
secretary  of  state,  and  presiding  judge,'"  or  the  attorney-general, 
chief  justice,  and  two  electors  appointed  by  the  governor." 

The  Board  of  Pardons  must  sit  in  open  session,  give  published 
notice  of  hearings,  and  record  all  pardons,  etc. ;  and  communicate 
them  to  the  legislature  at  each  session. '- 

Exceptions.  But  in  California  a  person  twice  convicted  of  felony 
cannot  be  so  pardoned  by  the  governor  without  the  ^Titten  recom- 
mendation of  a  majority  of  the  judges  of  the  Supreme  Court. 
And  in  Kentucky,  a  person  who  has  participated  in  a  duel  may  be 
pardoned  only  after  the  expiration  of  five  years  from  the  offence.'^ 
Restoration  to  franchise  is  by  a  two-thirds  vote  of  the  legislature.  '■* 

§  161.  What  may  be  pardoned.  In  most  States  all  offences  may 
be  pardoned,  according  to  §  160,  except  treason  and  in  cases  of 
impeachment.'^  Or  except  only  in  cases  of  impeachment.'"  Or 
except  only  treason."    In  Vermont,  except  also  murder. 

But  in  some  States,  no  exception  is  made  of  either  treason  or 
impeachment.'^ 

1  Nev.  5,  14;  Utah  7,  12.  Ind.,  lo.,  La.,  Md.,  Mich.,  Miss.,  Mo., 

2  Ida.  4,  7.  N.  D.,  Neb.,  Nev.,  N.  Y.,  O.,  S.  D., 

3  Fla.  Tex.,     Utah,     Vt.,    Wis.,    Wy.      The 

*  Mon.  7,  9 ;  Ala.  124.  President  of  the  United  States  is 
^  S.  D.  authorized  to  pardon  even  treason 
6  Minn.  (U.  S.  C.  2,  2,  2),  but  not  impeachment, 
^  Pa.  4,  9.  and  this  is  probably  a  constitutional 

*  Mon.,  S.  D.  principle  in   England.     There  can,   of 

*  Except  minor  crimes,  S.  D.  course  be  treason  to  a  State  as  well  as 
*"  La.  69.  to  the  United  States. 

"  N.  D.  Amt.  3.  '8  Ala.,  Del.,  Ky.,  Mass.,  Md.,  Me., 

12  Ida.,  Mon.,  N.  D.,  S.  D.,  Utah,  Wy.  Minn.,  N.  C,  N.  H.,  N.  J.  Okla.,  Pa., 

"  Ky.  239.  R.  I.,  S.  C,  Tenn.,  Va.,  W.  Va. 

1*  Miss.  253.  "  Ore. 

1^  Ark.,   Cal.,   Col.,   Fla.,  Ga.,   Ida.,        »«  Ct.,  111.,  Kan. 


PART    l]  BILL   OF   I'JGIITS :    CRIMINAL  189 

Treason  may,  in  many  States,  be  pardoned  by  the  legislature; 
and  the  governor  may  suspend  the  sentence  until  the  end  of  the 
session  of  the  legislature  next  following  conviction.^  So,  in  two 
more,  except  that  this  power  to  pardon  is  vested  in  the  Senate." 

§  102.  The  Effect  of  a  Pardon.  In  Alabama  it  does  not  relieve 
from  civil  or  political  disability  unless  so  specifically  expressed  in 
the  pardon.  But  in  South  Carolina  pardon  by  the  governor  restores 
the  right  of  suffrage.^  In  Connecticut,  the  legislature,  by  a  two- 
thirds  vote  of  each  full  house,  may  restore  the  privileges  of  an 
elector  to  a  person  convicted  of  crime.^    Or  embezzlement.^ 

In  two,  the  governor  may  remove  political  disabilities  consequent 
on  conviction,*^  or  that  of  holding  office  (as  to  duelling  only).^ 

§  163.  Reprieves.  By  the  Constitutions  of  most  States,  the 
governor  is  expressly  given  powder  to  grant  reprieves  in  the  same 
cases  (§  161),^  but  not  for  more  than  sixty  days.^  The  governor 
may  grant  reprieves,  after  conviction,  except  in  cases  of  impeach- 
ment, until  the  end  of  the  next  session  of  the  legislature.  ^^  So  the 
Board  of  Pardons.*^ 

§  164.  Fines  and  Forfeitures  may,  by  the  Constitutions  of  most 
States,  be  remitted  by  the  governor  or  other  persons  in  whom  the 
pardoning  power  is  vested  (see  §  160).^-  So  the  governor  may 
suspend  their  collection  for  a  period  not  exceeding  sixty  days.^^ 
So,  of  fines  or  forfeitures.^*  But  he  may  not  remit  other  debts  due 
the  State.'' 

§  165.  Lynch  Law.  A  prisoner  lawfully  in  custody  of  any 
officer  seized  by  a  mob  or  other  unlawful  assemblage  and  suffering 
violence  or  death,  the  officer  is  guilty  of  a  misdemeanor  and  upon 
conviction  shall  forfeit  his  office  and  be  forever  disqualified  to  hold 
office  unless  pardoned ;  and  when  death  ensues  to  the  person  lynched 

1  Cal.,  Fla.,  Ga.,  Ida.,  Ind.,  lo.,  S.  C,  S.  D.,  Tenn.,  Tex.,  Utah,  Va., 
Ky.,   La..   Mich.,  Miss.,  N.   D.,  Neb.,   W.  Va.,  Wis.,  Wy. 

Nev.,  N.  Y.,  O.,  Ore.,  S.  D.,  Utah,  Vt.,         «  Fla.,  Nev. 

Wis.,  Wy.  10  Ct.  4,  10;  R.  I.  7,  4. 

2  Ark.,  Tex.  "  Ida. 

3  S.  C.  2,  6.  1'  Ala.,  Ariz.,*  Ark.,  Del.,  Fla.,  Ga., 
*  Ct.  Amt.  17.  Ida.,  Ind.  5,  17;  lo.,  Ky.,  La.,  Md., 
«  S.  C.  10,  12.  Me.,Miss.,Mon.,N.D.,Nev.,N.J.,Ore., 
«  Ky.  145;  Va.  73.  Pa.  4,  9;  S.  C.,  S.  D.,  Territories, 
^  Ky.  240.  U.  S.  R.  S.  1841;  Tex.,  Utah,  Va. 
«  Ala.,  Ark.,  Cal.,  Col.,  Del.,  Fla.,    73;  Vt.  2,   11;  Wash.  3,  11;  W.  Va., 

Ga.,  Ida.,  111.,  Ind.,  lo.,  Ky.,  La.,  Md.,  Wy. 

Me.,   Mich.,   Minn.,   Miss.,   Mo.,  Mon.,  '^  Nev. 

N.  C,  N.  D.,  Neb.,  Nev.,  5,  13;    N.  J.  "  Fla.  4,  11;   N.  J.  5,  9. 

5,  9;    N.  Y.,  O.,  Okla.,  Ore.,  Pa.  4,  9;  "  Md. 


190  THE   STATE    CONSTITUTIONS  [BOOK    III 

the  county  where  it  takes  phice  is  liable  in  exemplary  damages  of  not 
less  than  S2000  to  his  representatives.  The  county  may  recover 
back  from  the  parties  engaged  in  said  lyncliing.^ 

The    sheriff    suffering    a    lynching    to    take    place    is    liable  to 
impeachment.' 

*  S.  C.  6,  G.    Statutes  of  similar  im-        «  Ala.  138. 
port  are  being  adopted  in  many  States. 


PAIiT   II]  POLITICAL   PfiOVISIONS  191 


Paet  II 

POLITICAL  PROVISIONS 

§  180.  Note.  Compare,  generally,  with  this  part  the  United 
States  Constitution,  after  which  the  poHtical  systems  of  the  newer 
States  are  generally  modelled.  It  has  proved,  since  the  first  edition 
(1S8G)  of  American  Statute  Law,  owing  to  frequent  amendments  of 
this  part  of  the  State  Constitutions  and  endless  diversity  of  detail, 
unwise  to  attempt  herein  more  than  a  general  statement  of  the 
States'  frame  of  government. 

Article  18.     Rights  of  Government 

§  181.  Authority  derived  from  the  People.  The  Constitutions 
of  all  States  except  New  York  and  Michigan  declare  that  all 
political  power  is  inherent  in  the  people,'  or  that  Governments 
derive  their  just  powers  from  the  consent  of  the  governed,"  or  are 
founded  on  the  authority  of  those  governed.^  And  that  the  people 
have  at  all  times  the  right  to  make,  alter,  or  reform  the  government.* 
So,  in  three,  the  doctrine  of  non-resistance  is  declared  to  be  wrong; 
and  the  people  ought  to  reform  or  abolish  the  government  when 
other  means  of  redress  fail.' 

'  Ala.  1,  2;  Ark.  2,  1;  Cal.  1,  2;  »  Ariz.*  Bill  of  Rts.  1;  Ark.  1,  2; 
Col.  2,  1;  Ct.  1,  2;  Del.  Preamble;  Del.;  Ga. ;  111.2,  1;  La.;  Md.  ;Mon.; 
Fla.  Decln.  of  Rts.  2;  Ga.  1,  1,  1;  Ida.  N.  C;  Neb.  1,  1;  N.  H.;  S.  D.  6,  1; 
1,  2;  Ind.  1,  1;  lo.  1,  2;  Kan.  Bill  of  Wash. ;  Wis.  1,  1.  See  Decln.  Ind.  Ij  3. 
Rts.  2:  Ky.  4;  La.  1;  Mass.  1,  5,  &  7;  ^  Ala.,  Col.,  Ct.,  Ind.,  Kan.,  Ky., 
Md.  Decln.  of  Rts.  1 ;  Me.  1,  2;  Minn.  La.,  Me.,  Miss.,  Mo.,  Mon.,  N.  M.*,  Ore., 
1,  1;  Miss.  5;  Mo.  2,  1 ;  Mon.  3,  1;  Pa.,  S.  D.,  Tenn.,  Tex.,  Utah,  Wy. 
N.  C.  1,  2;  N.  D.  1,  2;  Nev.  1,  2;  ^  Ala. ;  Ariz.* ;  Ark. ;  Cal. ;  Col.  2,  2 ; 
N.  H.  1,  1,  &  8;  N.  J.  1,  2;  N.  M.*  Ct. ;  Del. ;  Fla. ;  Ga.  1,  5,  1 ;  Ida. ;  Ind. ; 
95,  1;  July  12,  1851,  §  1;  O.  1,  2;  lo. ;  Ky. ;  Mass.  Preamble  1,  7;  Md. ; 
Okla.  2,  1 ;  Ore.  1,  1 ;  Pa.  1,  2 ;  R.  I.  1,  Me. ;  Minn. ;  Miss.  6 ;  Mo.  2,  2 ;  Mon.  3, 
1;  S.  C.  1,  1;  S.  D.  6,  26;  Tenn.  1,  1;  2;  N.  C.  1,3;N.  D. ;  Nev.;  N.  H.  1,10; 
Tex.  1,  2 ;  Utah  1,  2 ;  Va.  1,  2 ;  Vt.  1,6;  N.  J. ;  N.  M.* ;  O. ;  Okla. ;  Ore. ;  Pa. ;  R. 
Wash.  1,  1 ;  W.  Va.  2,  2;  3,  2;  Wy.  I. ;  S.  C. ;  S.  D.  ("In  lawful  and  consti- 
1,  1.  So  in  the  United  States  Constitu-  tuted  methods"),  Telkn. ;  Tex. ;  Utah; 
tion  (Preamble;  Amts.  9,  10).  In  Va.  1,  3;  Vt.  1,  7;  W.  Va.  3,  3;  Wy. 
England  it  resides  with  the  Sovereign  See  also  Decln.  Ind.  ^  1.  See  also  §  183. 
and  Parliament.  (Taswell-Langmead,  ^  Md.  Decln.  of  Rts.  6 ;  N.  H. ;  Tenn. 
p.  428.)       See  Decl.  Ind.,  CI.  3.  1,  2.     This  seems  Uke  an  attempt  to 


192  THE   STATE   CONSTITUTIONS  [BOOK   III 

§  1S2.  Form  of  Government.  The  Constitution  of  Texas  declares 
that  the  faith  of  the  people  stands  pledged  to  a  republican  form  of 
government ; '  and  that  of  Kentucky  and  Wyoming,  that  absolute, 
arbitrary  power  over  the  lives,  liberty,  and  property  of  freemen 
exists  nowhere  in  a  republic,  not  even  in  the  largest  majority.^ 
Representative  government  is  not  necessary,  however,  in  Okla- 
homa.    See  §  201. 

§  183.  The  object  of  Government  is  declared  to  be  for  the 
security,  benefit,  and  protection  of  the  people,^  "for  the  preserva- 
tion and  protection  of  our  liberties,"  *  for  their  peace,  safety,  and 
happiness,^  for  their  benefit,  or  "for  the  good  of  the  whole,"  "  "for 
the  protection  of  property,"  ^  for  their  equal  protection  and  benefit,^ 
or  to  protect  the  citizen  in  the  enjoyment  of  life,  liberty,  and  prop- 
erty,°  or,  to  protect  and  maintain  individual  rights. ^°  And  in  New 
Hampshire,  also  in  the  enjoyment  of  rights  of  conscience.'^  In 
Massachusetts,  to  protect  them  in  the  enjoyment  of  their  natural 
rights  generally.  ^^ 

When  Government  assumes  other  functions  than  as  above,  it  is, 
in  Alabama,  declared  to  be  usurpation  and  oppression.  So,  in 
Missouri,  when  it  fails  of  its  objects  as  above,  it  fails  of  its  chief 
design.  ^^  And  may  be  reformed  or  abolished  by  a  majority  of  the 
community.  '* 

§  184.  Officers.  —  [As  a  consequence  of  §  181]  all  officers  are 
by  the  Constitutions  of  seven  States  declared  to  be  accountable  to 
the  people  as  their  trustees  or  servants.'^ 

establish  a  constitutional  right  to  revo-        *  S.  C.  Preamble. 

lution!     See  also  §§  4,  5,  12.  '  Del.  Preamble;    La.  1;    Ind.  1,  1; 

1  Tex.  1,  2.  Tliis  is  required  by  Ky.  4;  Ore.  1,  1;  Pa.  1,  2;  Tenn.  1, 
U.  S.  Const.  4,  4.     A  republican  form  1;    Wy.  1,  1. 

of  government  is  usually  understood  to  ®  Col.  2,  1;    Ct.  1,  2;    Ga.  1,  1,  1; 

be  based  upon   the  suffrages   of   the  Ida.  1,  2;    La.  1 ;    Md.;  Okla.;  Decln. 

people  with  a  representative  legislature  of  Rts.  1 ;  Me.  1,  2 ;   Miss.  5  ;   Mo.  2,  1 ; 

and  an  elective  non-hereditary  execu-  Mon.  3,  1 ;    N.  C.  1,  2 ;    N.  H.  1,  1 ; 

tive ;    while  in  a  pure  democracy    all  Okla. ;   R.  L ;  S.  D. ;  Tex.  2,  2. 

the  people  make  the  laws  and  elect  the  ^  Ky. 

officers  directly.  «  Ida.;  S.  D.  6,  26;  Utah  1,  2. 

2  Ky.  2;  Wy.  1,  5.  This  is  a  good  »  Ala.  1,  35;  Ariz.*  Bill  of  Rts.  1; 
definition  of  constitutional  govern-  Ark.  2,  2;  Ga.  1,1,2;  111.2,1;  Mo.  2, 
ments  as  distinct  from  a  pure  democ-  4;  Neb.  1,  1;  N.  H.  1,  12;  S.  D.  6,  1; 
racy.  Wis.  1,  1.  See  also  Decln.  of  Ind.  If  4. 

3  Ark.  2,  1 ;    Cal.  1,  2;    Fla.  Decln.  '°  Wash.  1,  1.    See  also  §  G. 
of  Rts.  2;    Ida.  1,  2;    lo.  1,  2;    Kan.  "  N.  H.  1,  4. 

Bill  of  Rts.  2;   Mass.  1,  7;  Minn.  1,  1 ;  '=  Mass.  Preamble. 

N.  D.  1,  2;    Nev.  1,  2;    N.  H.  1,  10;  "  ggg  ^Iso  §§  6,  12. 

N.  J.  1,  2 ;  O.  1,  2  ;  Okla.  2,1;  R.  I.  1,  "  Va.  1,  3. 

2 ;  Va.  1,  3 ;  Vt.  1,  7 ;  W.  Va.  3,  3.  ^'  Ga.  1,  1,  1 ;  Mass.  1,  5;  Md.  Decln. 


PART  II]  POLITICAL  PROVISIONS  193 

§  185.  Fundamental  Principles  are  referred  to,  and  their  observ- 
ance required  both  of  electors  and  officers.' 

§  186.  Representation  is,  by  the  Constitutions  of  many  States, 
required  to  be  apportioned  according  to  population.^  And  so  of 
representatives  to  Congress.^  So,  in  others,  it  is  to  be  "founded 
on  principles  of  equality."  *  To  be  "equal  and  uniform."  ^  Rep- 
resentation according  to  population  in  both  houses  of  the  Legisla- 
ture is  in  fact  provided  for  in  nearly  all.®  In  others,  as  to  the  lower 
house  only,^  in  Connecticut  as  to  the  Senate.  In  New  Hampshire, 
the  representative  districts  are  divided  according  to  population,  but 
the  senatorial  according  to  the  proportion  of  direct  taxes  paid.* 
For  Oklahoma,  see  also  §  182. 

§  187.      Gerrymandering.  —  See  §  218. 

§  188.  Initiative  and  Referendum.  —  See  §  309.  (See  also 
§  182,  note  1.) 

Article  19.    State  Sovereignty 

§  190.  The  United  States  Constitution,^  by  the  Constitutions  of 
a  few  Southern  States,  is  expressly  declared  the  supreme  law  of 

of  Rts.  6;  N.  H.  1,  8;   Va.  1,  2;  Vt.  1,        'Compare    §    391.      The    Federal 
6;  W.  Va.  3,  2.    See  §  213.  Constitution,  Art.  6,  §  2,  reads:  "This 

*  N.  H.  1,  38.  See  §  5.  Constitution,  "and  the  Laws  of  the 
'^  Ala.    198,    200,    284 ;    Ariz.*  Bill  United  States  which  shall  be  made  in 

of  Rts.  12 ;    Col.  5,  45 ;    Kan.   10,  2 ;  Pursuance  thereof ;     and   all  Treaties 

Ky.  33;  La.  18,  19;  Md.Amt.  1900,432;  made  or  which  shall  be  made,  under 

Me.  Amt.  25;  Minn.  4,  2;  Mon.  6,  2;  the   Authority   of   the    tfnited   States 

N.  D.  29  &  35  ;  Neb.  3,  2  ;  Nev.  1,  13;  shall  be  the  supreme  Law  of  the  Land; 

N.  Y.  3,  4 ;  S.  D.  3,5;  Tex.  3,  25,  &  and  the  Judges  in  every  State  shall  be 

26;  Wash.  3,  3;  W.  Va.  2,4;  Wy.  3,  3.  bound  thereby,  anything  in  the  Con- 

'  Mon.;  Va.  55;  W.  Va.  1,  4.  stitution   or    Laws    of    any    State   to 

*  Mass.  2,  1,  3,  1 ;  N.  H.  2,  9.  the  contrary  notwithstanding."  It  is 
^  Ky.,  La.  therefore  quite  unnecessary  to  put 
^  Ark.  8,  1,  2;  Cal.  4,  6;  Ct.  Amts.  similar  provisions  in  the  State  Constitu- 

2,  18,  23,  31   (the  equality  is  still  im-  tions,  though   it   is   probably  done  in 

perfect,  however)  ;  Fla.  7,  3 ;  III.  4,  6 ;  memory  of  the  attempted   Secession. 

Ind.  4,  5 ;  lo.  3,  35 ;  Ky.  33 ;  Mass.  Amt.  It  will  be  noted  that  all  treaties  made 

21-22;    Me.  4,  1,  2;   Mich.  4,  4;  Miss,  under    the    authority    of    the    United 

4,  34-35;   Mo.  4,  2,  &  5;   Mon.  6,  6;  States  shall  be  the  supreme  law  of  the 

N.  C.  2,  4-5;    N.  D.  29,  35;    N.  Y.  3,  land.     But  just  as  a  law  must  be  con- 

4-5;   O.  11,   2,  &  6;   Okla.  5,  9  a,  &  stitutional,  it  would  seem  that  a  treaty 

10  (c) ;  Ore.  4,  6 ;  Pa.  2,  16-17 ;  Tenn.  should  be  constitutional,  and  one  made 

2,  4-6 ;  Vt.  2,  7 ;    W.  Va.  6,  4,   &  7 ;  counter  to  the  admitted  rights  of  the 

Wis.  4,  3 ;   Wy.  3,  3.  States  would,  according  to  the  better 

^  Ga.  3,  3,  2-3;    Md.  3,  2-4;    N.  J.  opinion,not  be  constitutional, at  least  as 

4,  3,  1;    R.  I.  5,  1,  but  each  town  or  between  the  States  and  the  Federal  gov- 
city  is  at  least  entitled  to  one  member ;  ernment. 

5.  C.  1,  2,  and  so  of  the  Senate;  R.  I.        Treaties  stand  on  no  higher  footing 

*  N.  H.  2,  9,  &  25.  than  acts  of  Congress  and  may  be  im- 

13 


194  THE   STATE   CONSTITUTIONS  [BOOK    III 

the  land,*  or  that  the  State  is  free  and  independent,  subject  only 
to  the  United  States  Constitution.^  So,  the  United  States  Constitu- 
tion is  declared  part  of  the  State  law,  anything  in  the  State  Consti- 
tutions or  laws  to  the  contrary  notwithstanding.^  And  so  of  United 
States  laws  made  under  the  Constitution,*  or  treaties  by  the  national 
Government.^  This  is  declared  irrepealable  without  the  consent 
of  the  United  States,  in  the  new  Western  Constitutions,  according 
to  their  enabling  Acts ;  but  this  would  seem  to  add  no  new  strength 
to  the  clause;  of.  §  155,  note  8. 

§  191.  Allegiance. — The  Constitutions  of  North  Carolina  and 
the  newer  States  provide  that  the  State  shall  always  remain  a  member 
of  the  American  Union. ^  So,  that  no  law  shall  be  passed  in  deroga- 
tion of  the  paramount  allegiance  of  the  citizens  of  the  State  to  the 
United  States  Government.''  And  in  two,  it  is  declared  that  the 
State  and  United  States  Constitutions  apply  as  well  in  war  as  in 
peace.  ^ 

§  192.  Secession.  —  The  Constitutions  of  three  States  declare 
that  there  is  no  right  on  the  part  of  the  State  to  secede  or  dissolve 
its  connection  with  the  Union, ^  and  that  all  attempts  at  secession 
ought  to  be  resisted  by  the  State,'"  and  by  the  Federal  Government, 
if  necessary,  by  force  of  arms.'* 

§  193.  State  Rights.  —  But  the  right  of  local  self-government 
belonging  to  the  people  of  each  State  is  in  several  of  the  older  States 

paired  by  a  subsequent  law  counter  to        *  Ga.,  Md.,  W.  Va. 

their  provisions.     Under  Art.  2,  §  2,        »  Ariz.*  Bills  of  Rts.  2;    Cal.  1,  3; 

the  president  has  power,  by  and  with   Ida.  1,  3;   N.  C.  1,  4;   N.  D.  3 ;   Okla. 

the  advice  and  consent  of  the  Senate,    1,    1;    S.   D.   6,  26;    Utah  1,  3;   Wy. 

to  make  treaties  provided  two-thirds  Ordinance;  1,  35.    This  would  seem  to 

of  the  Senate  as  present  concur.     They   be  settled,  and  it  is  left  out  in  the  new 

cannot  be  formally  abrogated  or  modi-  Constitution  of  S.  C.  and  Va. 

fied   except  by  the  power  that  made        '  Fla.   Decln.  of  Rts.  2 ;    Miss.   7 ; 

them,  but  a  law  inconsistent  with  their  N.  C.  1,  7;  Nev.  1,  2  ("In  the  exercise 

provisions    would,    nevertheless,    take   by  the  United  States  Government  of 

effect  pro  tanto.  the   constitutional   powers   as   defined 

1  Ariz.*  Bill  of  Rts.  2;    Cal.  1,  3;   by  the  U.  S.  Supreme  Court"). 
Ga.  12,   1,  1;    Ida.   1,  3;    Md.  Decln.        «  Md.   Decln.  of  Rts.  44;    W.  Va. 
of  Rts.  2;   Miss.  6;   Mo.  2,  2;   Mon.  3,    1,  3. 

2;  N.  C.  1,  5;  N.  D.  3 ;  Nev.  Prelim.  "  Fla.  Decln.  of  Rts.  2;  N.  C.  1,  4; 
Act;  Okla.  1,  1 ;  S.  D.  6,  26;  Utah  1,  Nev.  1,  2.  Similar  provisions  existed 
3;  Wash.  1,  2;  W.  Va.  1,  1;  Wy.  1,  in  Alabama  and  Mississippi,  but  have 
35 ;  Ordinance.     See  also  §  193.  been  omitted  by  the  new  Constitution. 

^  Col.  2,  2 ;  Md.  Decln.  of  Rts.  2-3 ;  In  substance  this  is  declared  by  the 
Tex.  1,  1.  14th  Amendment.     See  §  157,  note  1. 

3  Ga.  1,  4,  2;    Ida.  Sched.  22;   Md.;  Compare  also  §  191. 
Territories,  U.  S.  R.  S.  1891.  '"  N.  C. 

*  Ariz.*  Ga.,  Md.,  Territories,  W.Va.       *'  Nev, 


PART    II]  POLITICAL    PPvOVISIONS  195 

declared  a  constitutional  right  which  the  national  Government  can 
never  infringe.^  The  people  of  the  State  have  the  sole  and  exclu- 
sive right  of  governing  themselves  as  a  free,  sovereign,  and  inde- 
pendent State;  and  shall  exercise  and  enjoy  every  power,  jurisdic- 
tion and  7-ight  which  is  not  or  may  not  hereafter  be,  by  them,  expressly 
delegated  to  the  United  States  of  America  in  Congress  assembled.^ 

So,  in  Virginia,  that  the  people  have  a  right  to  uniform  govern- 
ment; and  therefore  that  no  government  separate  from,  or  inde- 
pendent of,  the  government  of  Virginia,  ought  to  be  erected  or 
established  within  the  limits  thereof.^ 

And  that  the  powers  not  delegated  to  the  United  States  by  the 
United  States  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  State.* 


Article  20.    Constitution  of  the  State  Governments 

§  200.  The  Three  Functions  J"  —  By  the  Constitutions  of  nearly 
all,  the  powers  of  Government  are  divided  into  three  distinct  depart- 

»  Col.  2,  2;  Ga.  1,  5,  1;  Md.  Decln.  is  to  say,  Article  1,  §  1,  "All  legisla- 
of  Rts.  4;  Mo.  2,  2 ;  N.  C.  1,  3;  Tex.  tive  powers  herein  granted  shall  be 
1,1;  Vt.  1,5;  W.  Va.  1,2.  See  Book  vested  in  a  Congress."  Art.  2,  §  1, 
I  for  a  full  discussion  of  this  principle  "The  executive  power  shall  be  vested 
and  its  history.  in  a  President."     Art.  3,    §    1,   "The 

*  Mass.  1,4;  N.  H.  1,5.  Judicial  power  of  the  United   States 
'  Va.  1,  14.  shall  be  vested  in  one  Supreme  Court," 

*  Md.  Decln.  of  Rts.  3;  W.  Va.  1,  2.  etc.  The  Massachusetts  provision  adds 
To  the  State  or  to  the  people,  and  the  striking  words  "To  the  end  it  may 
so  the  words  run  in  the  U.  S.  10th  be  a  government  of  laws  and  not  of 
Amendment.  men,"    which   phrase   was   praised   by 

*  This  division  of  the  powers  of  Daniel  Webster  as  its  "noblest  expres- 
sovereignty  into  three  departments,  sion."  The  omission  of  the  provision 
legislative,  executive,  and  judicial,  and  from  the  Constitution  of  New  York, 
constitutional  exclusion  of  either  de-  with  the  corresponding  omission  of  the 
partment  from  the  functions  of  the  statement  (Sec.  183)  that  the  object  of 
other  is,  with  the  invention  of  a  dele-  government  is  for  the  benefit,  etc.  of 
gated  legislative  authority  subject  to  the  people,  is  a  most  striking  one.  In 
the  judgment  of  the  courts,  perhaps  England  the  attempt  of  the  kings  to 
the  greatest  political  invention  of  the  resist  this  principle  was  in  modern 
founders.  (See  Book  I.)  Although  times  most  notable  under  Charles  I. 
doubtless  theoretical  precedents  are  and  George  III.  The  effort  of  James  I. 
to  be  found  in  the  books  of  l\Iontes-  in  1616  to  interfere  ^\'ith  the  judiciary, 
quieu  and  others,  the  principle  does  and  the  resistance  of  Coke  is  well  de- 
not  exist  in  the  British  Constitution,  scribed  in  Taswell-Langmead  (pp.  406- 
and  was  really  first  applied  intelli-  407).  By  the  Act  of  Settlement  (12 
gently  in  our  own.  The  separation  of  and  13  William  III.  c.  2)  all  judges' 
powers  is  just  as  clearly  expressed  in  commissions  are  to  be  during  good 
the  Federal  Constitution  as  in  those  behavior,  and  their  salaries  fixed,  and 
of  the  States,  although  put  more  they  can  only  be  removed  upon  address 
simply  and  without  the  negative;  that  of  both  houses  of  Parliament.    In  1780 


19G  THE    STATE    CONSTITUTIONS  [BOOK    III 

ments,  —  the  legislative,  executive,  and  judicial,*  "to  the  end  that 
it  be  a  government  of  laws,  not  of  men."  -  And  in  most  of  these  it 
is  declared  that  no  person  or  collection  of  persons  exercising  the 
functions  of  one  department  siiall  assume  or  discharge  the  func- 
tions of  any  other.^  They  (tiie  three  departments)  ought  to  be 
kept  as  separate  from  and  independent  of  each  other  as  the  nature 
of  a  free  government  will  admit."* 

In  the  other  States  the  same  thing  is  implied  by  the  distribution 
of  all  such  power  in  separate  articles,  as  in  the  United  States 
Constitution. 

In  others,  only  that  the  Legislature  can  exercise  no  judicial  power 
not  expressly  conferred  by  the  Constitution,''  or  that  the  judges  shall 
have  none  but  judicial  duties  imposed  upon  them." 

The  legislature  shall  have  no  power  to  deprive  the  Judicial  De- 
partment of  any  power  or  jurisdiction  \^hich  rightfully  pertains  to 
it  as  co-ordinate  department  of  the  Government;  but  the  Legisla- 
ture shall  provide  a  proper  system  of  appeals,  and  regulate,  by  law, 
when  necessary,  the  methods  of  proceeding  in  the  exercise  of  their 
powers  of  all  the  courts  below  the  Supreme  Court,  so  far  as  the  same 
may  be  done  without  conflict  with  this  Constitution.'' 

§  201.  Political  Constitution.  (See  309.)  There  is  in  all  the 
States  and  territories  a  Legislature.^    Both  the  Senate  and  the  House 

a  resolution  was  proposed  and  carried  (Except  in  cases  expressly  by  the  Con- 
in  the  House  of  Commons  affirming  stitution  permitted :  Ark.,  Cal.,  Col., 
that  the  influence  of  the  Crown  has  Fla.,  Ga.,  Ida.,  111.,  Ind.,  lo.,  Ky.,  La., 
increased,  is  increasing,  and  ought  to  Me.,  Mich.,  Minn.,  Mo.,  Mon.,  Neb., 
be  diminished  (Taswell-Langmead,  p.  Nev.,  Ore.,  Tenn.,  Tex.,  Utah,  Wy.) 
550).  *  N.  H. 

'  Ala.  42;    Ark.    4,    1;    Cal.    3,    1 ;         ^  0.2,32. 
Col.  3,  1;    Ct.  2;    Fla.  2;    Ga.  1,  23;         «  N.  D.  96;   Wy.  5,  16. 
Ida.  2,  1 ;    111.  3,  1 ;    Ind.  3,  1 ;    lo.  3,         ^  Ida.  5,  13.     See  also  Art.  65,  for 

1;    Ky.  27;   La.  16;   Mass.  1,  30;  Md.  laws   regulating   powers   of   courts   in 

Decln.  of  Rts.  8 ;    Me.  3,  1 ;    Mich.  3,  contempt  cases. 

1 ;    Minn.  3,  1 ;    Miss.  1,  1 ;    Mo.  3,  1 ;         «  ^la.  44 ;  Ark.  5,  1 ;  Cal.  4,  1 ;  Col 

Mon.  4,1;  N.  C.  1,  8 ;  Neb.  2,  1 ;  Nev.  5,  1 ;  Ct.  3,  1 ;  DsL  2,  1 ;  Fla.  3,  1 ;  Ga, 

3,  1 ;  N.  H.  1,  37 ;  N.  J.  3 ;  Okla.  4,  1 ;  3,  1,  1 ;   Ida.  3,  1 ;   111.  4,  1 ;   Ind.  4,  1 

Ore.  3,  1 ;  R.  I.  3  ;  S.  C.  1,  14 ;  S.  D.  2,  lo.  3,  1 ;    Kan.  2,  1 ;    Ky.  29 ;    La.  21 

1 ;    Tenn.  2,  1 ;    Tex.  2,  1 ;    Utah  5,  1 ;  Mass.  2,  1,  1,  1 ;  Md.  3,  1 ;   Me.  4,  1,  1 

Va.  5  &  39 ;  Vt.  2,  6 ;  W.  Va.  5,  1 ;  Wy.  Mich.  4,  1 ;   Minn.  4,  1 ;   Miss.  33 ;   Mo 

2,  1.  4,  1 ;  Mon.  5,  2;  N.  C.  2,  1 ;  N.  D.  52 

^  Ala.  43 ;  Mass.  Neb.  3,  1 ;  Nev.  4,  1 ;  N.  H.  2,  2 ;  N.  J 

3  Ala. ;  Ark.   4,  2 ;  Cal. ;  Col. ;  Fla. ;  4,  1,  1 ;  N.  Y.  3,  1 ;  O.  2,  1 ;  Okla.  5,  1 

Ga. ;  Ida. ;  111. ;  Ind. ;  lo. ;  Ky.  28 ;  La.  Ore.  4,  1 ;  Pa.  2,  1 ;  R.  I.  4,  2 ;  S.  C.  3 

17;  Mass.;  Md.;  Me.  3,  2;  Mich.  3,2;  1 ;  S.  D.  3,  1 ;  Tenn.  2,  3;   Tex.  3,  1 

Minn.;  Miss.   1,  2;  Mo.;  Mon.;  Neb.;  U.  S.  R.  S.  1846;    Utah  6,  1;   Va.  40 

Nev.;  N.  J.;  Okla.;  Ore.;  S.  C;  S.  D.;  Vt.  Amts.  2-3;    Wash.  2,  1;    W.  Va, 

Tenn.  2,  2 ;  Tex. ;  Utah ;  Va. ;  Vt. ;  W.  Va  6,  1 ;   Wis.  4,  1 ;   Wy.  3,  1.    In  many 


PART   II]  POLITICAL   PROVISIONS  197 

are  in  all  States  elected  by  the  people  at  the  general  election 
day/  Vacancies  in  either  House  are  nearly  always  filled  in  the  same 
way  by  a  special  election,^  but  in  Massachusetts,  vacancies  in  the 
Senate  are  filled  by  special  election  upon  the  order  of  a  majority  of 
the  senators  elected,''  and  in  New  Hampshire  by  direct  vote  of  the 
two  Houses.     Where  there  is  no  majority  vote,  see  §  232. 

Each  house  of  the  Legislature  has  a  negative  on  the  other.  ^  Or 
the  concurrence  of  both  Houses  is  necessary  to  the  enactment  of  laws.^ 
For  other  States,  see  §  304. 

The  legislative  authority  of  the  State  shall  be  vested  in  a  Legisla- 
ture, consisting  of  a  Senate  and  a  House  of  Representatives ;  but  the 
people  reserve  to  themselves  the  power  to  propose  laws  and  amend- 
ments to  the  Constitution  and  to  enact  or  reject  the  same  at  the  polls 
independent  of  the  Legislature,  and  also  reserve  power  at  their  own 
option  to  approve  or  reject  at  the  polls  any  act  of  the  Legislature.* 

There  is,  in  most  States,  a  provision  that  legislative  districts  shall  be 
fixed  according  to  population.  ^  In  some  of  the  older  States,  however, 
the  districts  are  fixed  by  the  Constitution,  and  cannot,  apparently, 
be  changed.*  So,  in  South  Carolina,  there  must  be  only  one  senator 
from  each  county.''  In  several  States  the  number  of  both  Senate 
and  House  is  permanently  fixed ;  thus,  for  the  Senate,  forty-four ;  ^^ 

the    le2;islature  is   called  the  General  Utah;   Va.  41,  42;  Vt.  Amts.  5-24,2 

Assembly  (Ark.,  Col.,  Ct.,  Del.,  Ga.,  111.,  Wash. ;  W.  Va.  4,  7 ;  Wis.  4,  4-5 ;  Wy 
Ind.,  To.,  Ky.,   La.,  Md.,  Mo.,  N.  C,         ^  Ala.  46;    Ark.  5,  6;    Cal.  4,  12 

N.  J.,  O.,  Pa.,  R.  I.,  S.  C,  Tenn.,  Va.,  Col.  5,  2;   Del.  2,  6;   Ga.  5,  1,  13;   111 

Vt.) ;  in  a  few,  the  Legislative  Assembly  4,  2 ;   Ind.  5,  19 ;   lo.  3,  12  ;   Kan.  2,  9 

(Mon.,  N.  D.,  Ore.);  in  some  of   the  Ky.  152;  La.  23 ;  Md.  3,  13;  Me.  1897 

old  States,  the  General  Court   (Mass.,  resolve  259;  Mich.  5,  10;  Minn.  4,  17 

N.  H.).     In  the  territories  the  Senate  Miss.  77 ;  Mo.  4,  14 ;  Mon.  5,  45 ;  N.  C 

is  called  the  Council.     In  some  States  2,  13 ;  N.  D.  44 ;  Nev.  4,  12 ;  N.  H.  2 

the  House  of  Representatives  is  called  15  &  33 ;    N.    J.    4,  4,    1;    O.  2,    11 

the  Assembly  (Cal.,  Nev.,  N.  Y.,  Wis.).  Okla.  5,  20;   Ore.  5,  17;   Pa.;   R.  I.  8 

In  others,  the  House  of  Delegates  (Md.,  9;   Amt.  11;   S.  C.  3,  25;   S.  D.  3,  10 

W.  Va.).  Tenn.  2,  15 ;   Tex.  3,  13 ;    Utah  6,  13 

'  Ala.  46 ;  Ark.  5,  2-3  ;  Cal.  4,  3-4 ;  Va.  47 ;  Wash.  2,  15 ;  W.  Va. ;  Wis.  4, 

Col. ;  Ct.  3,  3-4 ;  Del.  2,  2,  3  ;  Fla.  3,3;  14 ;  Wy.  3,  4.     See  also  §  232. 
Ga.  3,  4,  2;   Ida.  3,  2;    111.;   Ind.  4,  2;         '  Mass.  Amt.  24. 
lo.  3,  3  &  5 ;  Kan.  2,  29 ;  Ky.  29,  30,         *  Mass. ;  Me. ;  N.  H.  2,  2  ;  Vt.    This 

31 ;   La.  191 ;   Mass.  Amts.  3-15;   Md.  is,  of  course,  the  case  in  all  the  States. 

3,  2  &  6;  Me.  4,  2,  1;  Mich.  4,  2;  *  lo.  3,  15;  N.  Y.  3,  15;  R.  I.  4.  2. 
Minn.  4,  24;  Miss.  34,  35;  Mo.  4,  2  &  «  Okla.  5,  1;  Mon.  1905,  61.  See 
5 ;  Mon. ;  N.  C.  2 ;  N.  D. ;  Neb.  16,  13 ;  also  §  309. 

Nev.  4,3-4;  N.  H.  2,  11  &  27;  N.  J.        ^  S.  C.  3,  3.     See  §  186. 

4,  2,  1;  N.  Y.  3,  2-5;  O.  2,  2;  Okla.   *  Ct.  1895,  p.  712;  1899,  p.  1153; 

5,  9;  Ore.  4,  3;  Pa.  2,  2;  R.  I.  8,  1 ;  Del.  2,  2. 

S.  C.  3,  2  &  6;  S.  D.;   Tenn.;   Tern-        "  S.  C.  3,  6. 
tories,  U.  S.  R.  S.  1846;  Tex.  3,  3-4;       '"  Okla.  5,  9. 


198 


THE    STATE   CONSTITUTIONS 


[rook   III 


or  fifty.'     For  the  House,  one  hundred;^   one-hundred  and  eipjlit;'' 
one  hundred  and  fifty.* 

United  States  senators  must  be  elected  by  popular  vote  whenever 
the  Federal  Constitution  so  permits/'  and  several  states  have  passed 
resolutions  urging  Congress  to  call  a  convention  so  to  amend ; " 
while  a  few  States  have  statutes  authorizing  voters  to  express  their 
preferences  for  United  States  senators  at  ordinary  elections. 

§  202.  Executive.  There  is  in  all  the  States  a  governor,  a  secre- 
tary of  state,  and  a  treasurer.^  And  so  in  all  the  territories  by  U.  S, 
R.  S.  1841.  In  most  of  the  States  there  is  also  a  lieutenant-governor.^ 
In  New  Hampshire,  Massachusetts,  and  Maine,"  there  still  exists  an 
executive  council  with  power  to  advise  the  governor;  so  in  North 
Carolina,  the  "council"  consists  of  the  secretary,  auditor,  treasurer, 
and  superintendent  of  public  instruction,"'  But  in  some  States  the 
president  of  the  Senate,  etc.,  succeeds  to  the  governor's  office  when 
vacanf 

There  is  in  most  States  also  an  auditor,'-  comptroller,'^  and  an 
attorney-general."  In  the  other  States  these  offices  may  be  provided 
for  by  statute.     In  many  States  there  is  a  superintendent  of  public 


1  N.  Y.  1902,  p.  199;  1898,  p. 1550. 

2  Okla.  5,  10. 

3  lo. 

*  N.  Y. 

'  Okla.  3,  4. 

«  lo.  1907,  p.  185;  Neb.  1907,  203; 
Ore.  1901,  p.  476. 

'  Ala.  113;  Ark.  6,  1;  Ariz.*  1143; 
Territories,  U.  S.  R.  S.  1843;  Cal.  5, 
1  &  17;  Col.  4,  2;  Ct.  4,  1  &  18  &  17; 
Del.  3,  1  &  15 ;  2,  16 ;  Fla.  4, 1  &  20 ;  Ga. 
5,  1,  1 ;  Ida.  4,  1 ;  111.  5,  1 ;  Ind.  5,  1 ;  6, 
1 ;  lo.  4,  1  &  22  ;  Kan.  1,  1 ;  Ky.  69,  80, 
82 ;  La.  61 ;  Mass.  2,  2,  1,  1 ;  2,  2,  4,  1 ; 
Amt.  17 ;  Md.  2,  1  &  22 ;  6,  1 ;  Me.  5,  1, 
1 ;  5,  3,  1 ;  Mich.  5,1;  8,  1 ;  Minn.  5,  1 ; 
Miss.  116,  133;  Mo.  5,  1;  Mon.  7,  1; 
N.  C.  3,  1;  N.  D.  71,  82;  Neb.  5,  1; 
Nev.  5, 1  &  19 ;  N.  H.  2,  40  &  66 ;  N.  J.  5, 
1;  7,  2,  3,4;  N.Y.  4,  1;  5,  1;  0.3,  1 
&  5 ;  Okla.  6,  1 ;  Ore.  5,  1 ;  6,  1 ;  Pa.  4, 
1 ;  R.  I.  7,  1  &  12  ;  S.  C.  4,  1  &  24  ;  S.  D. 

4,  1  &  12 ;  Tenn.  3,  1  &  17 ;  7,  3  ;  Tex.  4, 
1 ;  Utah  7, 1 ;  Va.  69,  80,  81 ;  Vt.  Amts. 
8-10 ;   Wash.  3,  1 ;   W.  Va.  7,  1 ;   Wis. 

5,  1;  6,  1;  Wy.  4,  1  &  11. 

«  Ala.  112;  Cal.  5,15;  Col.  4,  1; 
Ct.  4,  3  ;  Del.  3,  19 ;  Ida. ;  111. ;  Ind. 
5,  2;    lo.  4,  3;    Kan.;    Ky.  82;    La.; 


Mass.  2,  2,  2,  1 ;  Mich. ;  Minn. ;  Miss. 
128;  Mo.;  Mon.;  N.  C. ;  N.  D.  72; 
Neb.;  Nev.  5,  17;  N.  Y.;  O.;  Okla.; 
Pa.;  R.  L;  S.  C.  4,  5;  S.  D.  4,  1;  Tex.; 
Va.  77;  Vt.";  Wash.;  Wis.  See 
§  282. 

»  N.  H.  2,  59;  Mass.  Amt.  16;  2,  2, 
3,  1;  Me.  5,  2,  1. 

1"  N.  C.  3,  14. 

»'  See  §  282. 

>2  Ala. ;  Ark. ;  Col. ;  Ida. ;  111. ;  Ind ; 
lo. ;  Kan. ;  Ky. ;  La.  82 ;  Mass. ; 
Mich. ;  Minn. ;  Miss. ;  Mo. ;  Mon. ; 
N.  C. ;  N.  D. ;  Neb. ;  O. ;  Okla. ;  Pa. ; 
S.  D.;  Utah;  Va. ;  Vt.  Amt.  1882, 
p.  108 ;  Wash. ;  W.  Va. ;  Wy. 

'3  Cal. ;  Ct.  4,  19 ;  Fla. ;  Ga. ;  Md. 
Nev. ;  N.  J. ;  N.  Y. ;  S.  C. ;  Tenn. ;  Tex 

'*  Ala. ;  Ark. ;  Cal. ;  Col. ;  Del.  7,  1 
Fla. ;  Ga.  6,  10,  1 ;  Ida. ;  111. ;  lo.  5 
12;  Kan.;  Ky. ;  La.  97;  Mass.  9,  11 
Md.  5,  1;  Me.  9,  11;  Mich.;  Minn. 
Miss.  143  ;  Mo. ;  Mon. ;  N.  C. ;  N.  D. 
Neb.;  Nev.;  N.  H.  2,  46;  N.  J. ;  N 
Y.;  O.;  Okla.;  Pa.;  R.  L;  S.  C. 
S.  D.;  Tenn.  6,  5;  Territories,  U.  S 
R.  S.  1875;  Tex.;  Utah;  Va.  107 
Wash. ;  W.  Va.  ;  Wis. 


PART    II  ] 


POLITICAL    PROVISIONS 


199 


instruction,'  in  others,  a  board  of  education.^  And  the  state  Constitu- 
tions estabHsh  other  offices  as  follows :  a  secretary  of  internal  affairs;  ^ 
a  state  engineer  or  surveyor ;  *  a  state  corporation  commission  of 
three  members ;  *  a  state  examiner  of  banks ;  ®  a  commissioner 
of  charities;^  a  state  examiner  and  inspector;^  a  commissioner 
of  insurance;  *  of  state  prisons; '"  of  immigration,  labor,  and  statis- 
tics; "  of  charities;  ^"  of  the  land  office;  '^  of  agriculture;  "  a  canal 
board ;  '^  a  superintendent  of  public  works ;  ^^  a  commissioner  of 
mines;  "  a  board  of  public  works;  '^  a  register  of  the  land  office;  '" 
a  state  librarian ;  -'*  a  superintendent  of  labor  and  agriculture ;  ^'  a 
board  of  railway  commissioners;'^  a  board  of  prison  commis- 
sioners ; "  a  state  board  of  health ;  ^*  a  state  board  of  labor  may  in 
Virginia  be  established  by  law."  In  the  other  States,  many  of  these 
boards  or  commissions  are  created  by  the  statutes  and  are  com- 
posed of  certain  specified  officers. 

There  has  been  a  decided  movement  recently  U)  establish  railroad 
commissions,  and  in  many  states  they  are  created  by  the  state  Con- 
stitution itself ;  see  §  532.     For  arbitration  commissions,  see  §  456. 

Executive  officers  are,  in  most  States,  elected  by  the  people  at 
the  general  election.-^ 

'«  N.  Y. 

''  Col.  16,  1. 

i«  Md.  12,  1 ;  Va.  4.  17. 

"  Ky. 

20  Md.  7,  3. 

2^  Ala.;  Del.  11,  1;  Ky. ;  La.;  Okla. 

6,  31;  Md.  10,  1;  Mon.  18,  1;  N.  D.; 
Va.  143. 

22  Neb.,  N.  D.     See  in  §  532. 

2»  Mon.  7,  20;   Nev.  5,  21. 

2*  Del.  12,  1. 

^  Va.  86. 

26  Ala.  114;  Ark.  6,  3;  Cal.;  Col 
4,  3 ;  Ct.  Amts.  4,  5,  and  6;  Del.  3,  2, 
&21;  Fla.  4,  20;  Ga.  5,  1,  3;  Ida. 
4,2;  ni.  5,  3 ;  Ind.  5,  3 ;  6,  1 ;  lo.  4,  2, 
&  3;  Kan.;  Ky.  70;  La.  62  &  79; 
Mass. ;  Md.  2,  2  ;  Me.  5,  1,  2  ;  Mich.  5, 
3 ;  8,  1 ;  Minn. ;  Miss. ;  Mo.  5,2;  Mon. 

7,  2;  N.  C;  N.  D.  74;  N.  H.  2,  41 
&  59;  Neb. ;  Nev. ;  N.  Y.  5,  1 ;  O.  3, 
1  &  18 ;    Okla. ;  Ore. ;  Pa.  4,  2 ;  R.  L 

8,  1 ;  S.  C. ;  S.  D.  4,  3  ;  Tenn.  3,  2 ;  Tex. 
4,  2  ;  Utah  7,  2 ;  Va.  70 ;  Vt.  Amt.  1883, 
p.  107  ;  Wash. ;  W.  Va.  7,  2 ;  Wis.  5,  3 ; 
6,  1 ;  Wy.  4,  3.  But  in  New  Jersey  the 
treasurer  and  comptroller  are  appointed 
by  the  legislature  in  joint  session;  and 


'  Ala.  13,  7;  Ark.  6,  21 ;  Col. ;  Fla 
12,  2  ;  Ga.  8,  2,  1 ;  Ida. ;  111. ;  Ind.  8 
8;  Kan.;  Ky.  91;  La.  225;  Mich. 
Miss.  202  ;  Mo. ;  Mon. ;  N.  C. ;  N.  D. 
Neb.;  Nev.  11,  1;  Okla.;  Ore.  8,  1 
Pa.;  S.  C.  11,  1;  S.  D. ;  Utah;  Va 
131;  Wash.;  W.  Va. ;  Wis.  10,  1 
Wy. 

2  Cal.  9,  2 ;  Col.  9,  1 ;  Fla.  12,  3 ; 
Ida.  9,  2;  lo.  9,  1,  1;  Mich.  13,  9; 
Miss.  203;  Mo.  11,4;  N.  C.  9,  8;  Neb. 
8,  1;  S.  C.  11,  2;  Tex.  7.  8;   Va.  130. 

3  Pa. 

*  Cal. ;  Nev. ;  N.  Y.  5,  2. 

'  Va.  155. 

«  La.  194. 

'  Okla.  6,  27. 

8  Okla.  6,  19. 

«  N.  D.  82 ;   Okla.  6,  22. 

"  N.  Y. 

»  Fla.;  Ida.  13,  1;  Ky.;  Md.  10,  3; 
Va. ;  Wash. ;  Okla.  6,  20. 

'=  N.  Y.  8,  11. 

"  Ark. ;  Col.  9,  9  ;  Fla.  4,  26 ;  Ky. ; 
Md.  7,  4  ;  Mich. ;  Neb. ;  N.  Y.  5,  5 ; 
Okla.  6,  32  ;    S.  D. ;   Tex. ;   Wash. 

»  Ala.;  Del.  11,  1;  Va.  143. 

1*  N.  Y.  5,  5. 


200 


THE   STATE   CONSTITUTIONS 


[book   III 


Vacancies  in  all  executive  offices  (except  the  governor  or  lieutenant- 
governor,  see  §  282)  are,  as  a  rule,  filled  either  by  election  or  appoint- 
ment as  originally  provided.'  But  in  some,  they  are  filled  by  the 
governor,  with  the  consent  of  the  Senate,  if  in  session  ^  (except  in 
Illinois,  Montana,  North  Carolina;  and,  in  Massachusetts,  vacancies 
of  the  council  are  filled  by  the  joint  vote  of  the  Legislature,  or,  if  not 
in  session,  by  the  governor  and  council.    Mass.  Amt.  25.) 

In  a  few  States,  all  state  offices  for  the  weighing,  gauging,  inspecting 
or  measuring  any  merchandise  or  produce  are  forbidden.'' 

§  203.     Terms   of   Office.     A  senator,   by  the    Constitution   of 
most  States,  is  elected  for  four  years.*     In  many  others,  for  two 


the  attorney-general  and  secretary  of 
state  are  nominated  by  the  governor 
and  confirmed  by  the  senate  (N.  J.  7, 
2,  3,  &  4) ;  so,  in  New  York,  the  super- 
intendents of  pubUc  works,  and  of 
prisons.  In  Pennsylvania,  the  secretary 
of  state  and  attorney-general  are  ap- 
pointed by  the  governor  and  confirmed 
by  the  senate  on  a  two-thirds  vote ; 
and  so  he  appoints  one  superintendent 
of  public  instruction  and  all  other 
officers  whom  he  is  given  power  to 
appoint  (Pa.  4,  8).  In  Maryland,  the 
comptroller  and  attorney-general  are 
elected  by  the  people ;  the  secretary  of 
state,  librarian,  and  commissioner  of 
lands  appointed  by  the  governor ;  and 
the  legislature  in  joint  session  elects 
the  treasurer.  In  Delaware,  the  secre- 
tary of  state  is  appointed  by  the 
governor  and  confirmed  by  the  senate 
(Del.  3,  10) ;  and  the  treasurer  by  the 
legislature  (Del.  2,  16).  In  two  States, 
the  secretary  of  state  is  appointed  by 
the  governor  and  confirmed  by  the 
senate  (Tex.  4,  21 ;  W.  Va.  7,  3).  In 
Georgia,  the  school  commissioner  or 
superintendent  is  appointed  by  the 
governor.  In  several,  the  secretary 
and  treasurer  [and  commissary]  are 
elected  by  the  legislature  in  joint 
ballot  (Me. ;  N.  H.  2,  66;  Tenn.  3,  17; 
7,  3  ;  so,  in  one,  the  comptroller  (Tenn.) ; 
so,  in  one,  the  attorney-general  (Me.  9, 
11).  In  one,  the  attorney-general  is 
appointed  by  the  Supreme  Court 
(Tenn.),  in  one,  by  the  governor  and 
council  (N.  H.  2,  45).  The  state  boards 
of  charities,  lunacy,  and  prisons  are 
appointed  by  the  governor  and  con- 
firmed by  the  senate  (N.  Y.  8,  12). 


In  the  territories,  the  governor,  sec- 
retary, and  attorney-general  are  ap- 
pointed by  the  President,  and  con- 
firmed by  the  Senate  of  the  United 
States  (U.  S.  R.  S.  1877). 

In  Maine,  the  council  is  elected  by 
the  legislature  in  joint  ballot  (Me.  5, 
2,  2). 

In  Mississippi,  the  governor  is  chosen 
by  votes  of  the  counties  or  district,  each 
one  being  entitled  to  the  same  num- 
ber of  votes  as  it  is  entitled  to  members 
in  the  House,  these  being  designated 
electoral  votes  and  given  to  the  person 
receiving  in  each  county  or  district  the 
highest  number;  and  the  person  re- 
ceiving a  majority  of  all  the  electoral 
votes  and  also  a  majority  of  the  popular 
vote  is  declared  elected  by  the  House, 
which  may  determine  the  contested 
vote  of  counties  or  districts  by  a  ma- 
jority vote.  If  no  person  have  such 
majorities,  the  House  chooses  the  gov- 
ernor from  the  two  persons  who  have 
received  the  highest  number  of  popular 
votes,  which  election  is  viva  voce. 
(Miss.  140;   141.) 

'  See  §§  202,  211. 

2  Ala.  136;  Ark.  6,  23;  Col.  4,  6 
Del.  2,  9;  111.  5,  20;  Kan.  1,  14;  Ky, 
76;  La.  76;  Mich.  8,  3;  Minn.  5,  4 
Mon.  7,  7;  N.  C.  3,  13;  Neb.  5,  20 
W.  Va.  7,  17.  In  R.  I.,  the  legislature 
elects,  as  in  §  232,  by  majority  vote. 
(R.  I.  Amt.  11.) 

^  Cal.  11,  14;  Pa.  3,  27. 

*  Ala.  46 ;  Ark.  5,  3 ;  Cal.  4,  4  ;  Col. 
5,  3 ;    Del.  2,  2 ;    Fla.  7,  2 ;    Ind.  4,  3 
lo.  3,  5 :   Kan.  2,  29 ;   Ky.  31 ;   La.  24 
Md.  3,  2;    Minn.  4,  24;    Miss.  34,  35 
Mo.  4,  5;   Mon.  5,  2;   N.  D.  27;  Nev 


PART   II  ]  POLITICAL   PROVISIONS  201 

years.*  In  two,  for  one  year.^  In  one,  for  three  years.^  Half  the 
senators  are,  in  many  States,  elected  at  each  general  election  for 
them,  the  other  half  holding  over.*  And  so,  one-third  are  elected 
at  each  general  election,  the  others  holding  over.^  In  three  States, 
a  representative  is  elected  for  four  years.''  But  in  most  States,  for  two 
years.  ^  In  four  States,  for  one  year.^  In  about  half,  the  governor 
holds  office  for  a  term  of  two  years.*  In  most  others,  for  four  years.'" 
In  two,  for  one  year."    In  one,  for  three  years. '^ 

The  other  executive  officers,  generally,  hold  office  for  the  same 
period  as  the  governor  in  all  the  States.  '^ 

§  204.  Special  Qualifications  for  Senators  and  Representatives.^* 
The  usual  qualifications  required  by  the  state  Constitutions  for 
state  senators  and  representatives  fall  into  three  classes :  citizenship, 
age,  and  residence.     Thus,  in  most  States,  no  person  can  be  state 

4,  4;    Okla.  5,  9;  Ore.  4,  4;    Pa.  2,  3 ;    3,  4;  Tex.  4,  4;   Vt.  Amt.  24,  3;  Wis. 

5.  C.  3,  6;   Tex.  3,  3;  Utah  6,  4;  Va.    5,  1. 

41;  Wash.  2,6;  W.  Va.  6,3;  Wis.  4,  '"  Ala.  116;  Cal.  5,  2;  Del.  3,  2; 
5  &  Amt. ;  Wy.  3,  2.  Fla.  4,  2  ;    111.  5,  1 ;   Ind.  5,  1 ;   Ky.  70 ; 

1  Ct.  Amt.  16,  2;   Amt.  27;    Ga.  3,    La.  62;  Md.  2,  1 ;  Miss.  4,  2;  Mo.  5,2; 

4,  1 ;  Ida.  3,  3 ;  111.  4,  2 ;  Me.  Amt.  23  ;  Mon.  7,1;  N.  C.  3,  1 ;  Nev.  5,  2 ;  Okla. 
Mich.  4,  2;  N.  C.  2,  3;  Neb.  3,  4;  N.  6,  4;  Ore.  5,  1;  Pa.  4,  3 ;  Territories, 
H.  2,  24;  N.  Y.  3,  2;  O.  2,  2;  S.  D.  U.  S.  R.  S.  1841;  Utah  7,  1;  Va.  69; 
3,  6;  Tenn.  2,  3;  Territories,  U.  S.  R.  Wash.  3,  2;  W.  Va.  7,  1;  Wy.  4,  1. 

5,  1846;  Vt.  Amt.  24,  4.  "  Mass.  2,  2,  I,  2;  R.  I. 

2  Mass.  Amt.  22 ;  R.  I.  8,  I.  '^  N.  J.  5,  3. 

^  N.  J.  4,  2,  1.  "  In  New  Jersey,  the  treasurer  and 

*  Ark. ;  Cal.  4,  5 ;  Col.  5,  5 ;  Fla. ;  comptroller  hold  office  for  three  years, 
Ind. ;  lo.  3,  6 ;  Ky. ;  Md.  3,  7-8 ;  Minn. ;  and  the  attorney-general  and  secretary 
Mo.  4,  10 ;  Mon. ;  N.  D. ;  Okla.  Ore. ;  of  state  for  five  (N.  J.  7,  2,  3,  &  4). 
Tex.;  Utah;  1,  4;  Wash.;  W.  Va. ;  The  term  of  the  auditor-general  is  three 
Wis. ;  Wy.  years,  and  of  the  treasurer  two    (Pa. 

«  N.  J.  4,  2,  2.  4,  21).    In  Ohio,  the  auditor  holds  office 

'  Ala. ;  La. ;  Miss.  for  four  years.     In  Indiana,  they  all 

"  Ark.  5,  2 ;    Cal.  4,  3 ;    Col.  5,  3 ;  hold  office  two  years,  except  the  lieu- 

Ct.  Amt.  27,  1 ;   Del.  2,2 ;  Fla. ;   Ga. ;  tenant-governor.      In    Minnesota,    the 

Ida. ;    111. ;    Ind. ;    lo.  3,  3  ;  Kan. ;    Ky.  auditor  holds  office  four  years   (Minn. 

31;  Md.  3,  6;   Me.;  Mich.  4,  3;  Minn.;  5,5;   Amt.  1883,  C.  1).     In  Maryland, 

Mo.  4,  2 ;    Mon. ;    N.  C.  2,  5 ;    N.   D.  the  attorney-general  and  the  superin- 

33 ;  Neb. ;   Nev.  4,  3 ;    N.  H.  2,  9 ;  O. ;  tendent  of  labor,  etc.,  hold  office  four 

Okla.;  Ore.;  Pa.;  S.  C.  3,  2 ;   S.  D. ;  years    (Md.    5,    1).      In    several,    the 

Tenn. ;  Territories* ;   Tex.  3,  4 ;    Utah  treasurer  holds  office  two  years   (Del. 

6,  3;  Va.  5,  2;  Vt.;  Wash.  2,  5;  W.  3,  21;  111.  5,  2;  Ky.  3,  25).  And  the 
Va. ;  Wis.  4,  4.  auditor  (Del.).     In  Tennessee,  the  sec- 

*  Mass.  2,  1,3,  1 ;  N.  J.  4,  3,  I ;  retary  of  state  holds  office  four  years 
N.  Y.  3,  2 ;  R.  I.  and    the    attorney-general,  eight.      In 

®  Ark.  6,  1 ;   Col.  4,  I ;   Ct. ;   Ga.  5,    Nevada,  the  superintendent  of  instruc- 
1,  2;    Ida.;   lo.  4,  2;   Kan.  1,  I;   Me.;    tion  holds  office  two  years  (Nev.    11, 
Mich.  5,  1 ;     Minn.    5,  3 ;     N.   D.  71 ;    1).     For  citations  of  other  States,  see 
Neb.  5,  1;    N.  H.  2,  41;    N.  Y.  4,  1;    above  and  §  202.    See  also  §  212. 
O.  3,  2 ;   S.  C.  4,  2 ;   S.  D.  4,  1 ;  Tenn.        ^*  For    religious    quahfications,    see 

§§  46,  47. 


202  THE    STATE    CONSTITUTIONS  [BOOK    III 

senator  or  representative  who  is  not  a  citizen  of  the  United  States  * 
or  in  some  cases  a  qualified  elector  of  the  State,  which  would  seem  to 
mean  much  the  same  tliiii<^.  Maine  alone  prescribes  that  he  must 
have  been  a  citizen  of  the  United  States  for  five  years. ^ 

The  residence  qualifications  vary  considerably  and  are  usually 
greater  in  the  case  of  a  senator  than  in  a  representative;  thus,  no 
person  is  eligible  for  state  senator  who  has  not  been  one  year,^  two 
years,*  three  years,''  four  years,"  five  years,''  six  years,^  or  seven  years  ' 
resident  in  the  State.  In  a  few  States  the  term  used  is  "citizen  "  in- 
stead of  "resident."  ^^     In  others  "a  qualified  elector."  " 

For  representatives,  the  period  of  residence  is  one  year,^^  two 
years,"  tliree  years, ^*  four  years, ^^  and  five  years;  '"  and  in  sev- 
eral States  he  must  in  like  manner  be  a  qualified  elector,'^  or  a 
citizen.  ^^ 

There  is  frequently  required  by  the  Constitution  a  term  of  residence 
within  the  senatorial  or  representative  district  which  is  usually  also 
greater  in  the  case  of  senators  than  in  that  of  representatives.  Thus, 
in  many,  a  candidate  must  be  resident  in  the  senatorial^'*  or  represent- 
ative ""  district  at  the  time  of  the  election ;  and  if  he  cease  to  reside  in 
such  district  he  vacates  his  office."^  The  time  of  residence  required 
in  the  district  varies  in  the  case  of  senators,  from  sixty  days,^  three 

lArk.  5,  4;   Col.  5,  4;   Ga.  3,  5,  1 ;  ^^  ^rk. ;    Ga. ;    Ind. ;    Ky.  32;    Mo.; 

Ida.  3,  6;   III.  4,3;   Ind.  4,  7;   lo.  3,  5;  N.  H.  2,  13;   N.  J.  4,  1,  2;   N.  D.  34; 

Mich.  4,  5 ;   Mo.  4,  6 ;   Mon.  5,  3 ;   Ore.  S.  D. ;  Tex. ;   Vt.  2,  18. 

4,  8;  S.  C.  3,  7;  S.  D.  3,  3 ;  Tenn.  2,  '*  Ala.  47;  Cal.  4,  4;  Del.  2,  2; 
10;  Tex.  3,  6;  Utah  5,  1;  Wash.  2,  7;  Md.  3,  9;  Tenn.;  Utah. 

Wy.  3,  2.  ''  Miss.  41 ;   Pa.  2,  5. 

2  Me.  4,  2,  6.  '«  111. ;  La.  24. 

*  lo.  3,  5;  Me.  4,  1,  4;  4,  2,  6;  "  Ida.;  La.;  Md. ;  Minn.;  Miss. 
Minn.  4,  25 ;  Wis.  4,  6.  41 ;  Mo. ;  N.  C.  2,  8 ;  Neb.  3,  5 ;  N.  J. ; 

*  Ark.;  Ind.;  N.  C.  2,  7;  N.  D.  28;  S.  C;  Territories;  Tex. 

5.  D.  '«  Ky. ;  Wy. 

=  Ala.  47 ;  Del.  2,3;  Cal.  4,  4 ;  Md.  '»  Ct.  3,  3  ;    Kan.  2,  4 ;   Mass. ;   Me. ; 

3,  9  ;  Mo. ;  Tenn. ;  Utah.  Mich. ;    Miss. ;    Neb. ;    N.   H. ;     Okla. 

«  Ga.;  Miss.  42;  N.  J.  4,  1,  2;  Pa.  5,   17;    Territories,  U.  S.  R.  S.  1846; 

2,  5.  Va.  5,  5. 

^  111.;    La.   24;    Mass.   2,    1,   2,   5;  ^^  Ct.  Amt.  3;    Kan.  2,  4;    Mass. 

Amt.  22 ;  Tex. ;   W.  Va.  4,  4.  Mich.    4,    5 ;     Miss. ;     Neb. ;     N.    H. 

8  Ky.  Territories;     Va.    44;     Vt.    Amt.    23 

«  N.  H.  2,  28.  Wis. 

"  Cal.,  Del.,  Ky.,  Md.,  N.  C,  N.  J.,  ^i  ^i^. ;    Fla.  3,  8;  Ga.  3,  4,  8;   La.; 

Pa.,  W.  Va.,  Wy.  Mass.;  Me.;  Mich.;  Miss.;  Mo.  4,  13; 

''  Ida.;    Md.;    Minn.;    Miss.;   Mo.;  Neb.;    Okla.;   Pa.;   Tex.  3,  23;    Va. ; 

N.   D.;   Neb.  3,  5;   N.  J. ;   Tex.;  Ter-  W.  Va.  6,  12. 

ritories,  U.  S.  R.  S.  1846;  W.  Va.  ^^  lo.     In  England  at  one  time  mem- 

'^  lo. ;    Me. ;    Minn.   4,  25 ;    S.   C  ;  bers  of  Parliament  had  to  be  resident 

Wis.  4,  6.  in  the  district. 


PAUT   II]  POLITICAL   PROVISIONS  203 

months/  six  months,^  one  year,^  to  two  years.*  In  some  States, 
instead  of  resident  he  must  be  a  qualified  elector,^  in  the  district. 

In  the  case  of  representatives,  he  must,  in  like  manner,  be  resident 
in  the  district  at  the  time  of  the  election,*'  and  upon  ceasing  to  be  such 
resident  he  loses  his  office.^  The  time  of  residence  required  varies 
from  sixty  days,**  three  months,^  six  months,^*'  one  year,''  to  two 
years. '^ 

Many  state  Constitutions  have  also  age  qualifications  for  senators 
or  representatives,  varying  from  twenty-one  '^  in  the  case  of  senators 
to  twenty-five,''*  twenty-six,'^  twenty-seven,'^  or  thirty.'^  For  repre- 
sentatives, the  age  varies  from  twenty-one,'^  to  twenty-four,'®  or 
twenty-five.^"  In  Missouri,  either  senator  or  representative  must 
have  paid  a  state  or  county  tax  within  one  year  before  election. 

There  are  certain  other  miscellaneous  special  qualifications.  (See 
also  Art.  22  and  §  304.)  Thus,  in  Massachusetts,  the  Constitution 
forbids  any  property  qualification  for  the  Legislature  or  Council.''  In 
Nebraska,  no  person  interested  in  a  contract  with,  or  an  unadjusted 
claim  against,  the  State,  can  hold  a  seat  in  the  Legislature.-"  In  Dela- 
ware, no  person  concerned  in  an  army  or  navy  contract;  and  no 
person  who  has  served  as  state  treasurer  is  eligible  for  the  Legislature 
before  his  accounts  as  treasurer  are  settled  and  discharged.-^  In  West 
Virginia,  no  salaried  officer  of  a  railroad.-^  No  person  convicted  of 
embezzlement  or  misuse  of  the  public  funds.  ^^    No  person  who  has 

1  Me.,  S.  C.  Amt.  21;    Md.;   Mo.;   Mon. ;    N    C; 

^  Minn.  Neb.;    N.    J.;    O.    2,    3;    Ore.;    Pa.; 

3  Ala.;     Ark.;     Cal. ;     Col.;     Del. ;  Tenn.  2,  9;  Tex.;  Utah;  Vt.;  W.  Va. 

Ga.;    Ida.;    Ind. ;    Ky. ;    Md. ;    Mo.  4,  6,  12 ;  Wy. 

6;    Mon.;   N.  C. ;   Neb.;    N.  J. ;    0.2,  '^  jlL,  La.,  Miss. 

3 ;    Ore. ;    Pa. ;    Tenn. ;    Tex. ;    Utah ;  "  Ore. 

W.  Va. ;    Wy.  "  Ala. ;  Ark. ;  Col. ;  Ga. ;   111. ;   Ind. ; 

*  111.,  La.,  Miss.  lo.  3,  5 ;  La. ;  Md. ;  Me.  4,  2,  6 ;  Miss. ; 
«  Fla.  3,  4 ;    Kan. ;    Mich. ;    N.  D. ;  Mon. ;   N.  C. ;   N.    D. ;   Okla. ;   Pa. ;  S. 

Nev.  4,  5 ;    Okla. ;   S.  C.  3,  7 ;    S.  D. ;  C. ;   S.  D.    (24)  ;   Utah ;    W.  Va. ;  Wy. 

Utah ;    Va. ;   Wash. ;   Wis.  '«  Tex. 

«  Ct.  3,  3 ;   Kan.  2,  4  ;   Mass. ;   Me. ;  "  Del. 

Mich.;    Miss.;    Neb.;    N.   H. ;     Okla.  "  Ky.,  Mo.,  N.  H.,  N.  J.,  Tenn.,  Vt. 

5,   17;   Territories,  U.  S.  R.  S.  1846;  '^  Ala.,  Ark.,  Ga.,  111.,  Ind.,  lo.,  Md., 

Va.  5,  5.  Me.,  Miss.,  Mon.,  N.  D.,  N.  J.,  Okla., 

'  Ala. ;  Fla.  3,  8;  Ga.  3,  4,  8;   La.;  Ore.,  Pa.,  S.  C,  Tenn.,  Tex.,  Wy. 

Mass.  Amt.  21 ;  Me. ;  Mich. ;  Miss. ;  Mo.  '^  Del.,  Ky.,  Mo. 

4,  13;  Neb.;  N.  H. ;  Okla.;  Pa.;  Tex.  ^o  c^i^  q^^  g  jy  ^  utah. 

3,  23 ;  Va. ;  W.  Va.  ^'  Mass.  Amt.  13. 

*  lo.  22  Ngb  3^  g     Compare  §  154. 
«  Me.  23  Del  2,  24. 

'"  Minn.  =4  -^V.  Va.  6,  13.    See  §  204,  note  14. 

"  Ala. ;  Ark. ;  Cal.  4,  4  ;  Col. ;  ^5  q^.  3,  4,  7 ;  Kan.  2,  6.  See  also 
Del. ;    Ga. ;    Ida. ;    Ind. ;    Ky. ;    Mass.    §  222. 


204  THK   STATE    CONSTITUTIONS  [BOOK   III 

been  convicted  of  bribery,  perjury,  or  otlier  infamous  crime,*  or 
expelled  for  corruption.-  And  also,  no  person  who  has  collected 
or  been  intrusted  with  public  money,  and  has  not  accounted  for 
the  same.^ 

Many  qualifications  similar  to  these  are,  of  course,  contained  in 
the  general  provision  for  disqualification  for  office.* 

§  205.  Special  Qualifications  for  Governor.^  Similar  qualifications 
for  the  governor  are  prescribed  in  many  state  Constitutions;  thus,  he 
must  be  a  citizen  of  the  United  States."  And  he  must,  in  some  States, 
have  been  such  citizen  for  a  certain  period  of  time ;  thus,  two  years,'' 
five  years,*  ten  years,®  twelve  years,  *°  fifteen  years, '*  or  twenty  years.*^ 
In  Maine,  he  must  be  a  natural-born  citizen  of  the  United  States.*^  In 
others,  he  must  have  been  resident  of  the  State  a  certain  period  of  time ; 
thus,  one  year,"  two  years,*^  three  years,'"  four  years,"  five  years,**  six 
years,*®  seven  years,-"  and  ten  years.-*  And  in  Maine  and  the  terri- 
tories, he  must  continue  to  reside  in  the  State  or  territory  during  his 
term  of  office. ^^  In  a  few  States,  instead  of  "citizen,"  the  words 
"qualified  elector"  are  used.^^  The  age  limitations  for  the  governor 
vary  from  twenty-one  in  States  where  there  is  no  prescription,  to 
twenty-five  in  a  few,^*  thirty  in  most,^^  and  thirty-five  in  two.-" 

In  a  few  States  the  governor  is  not  eligible  for  re-election  for  any 
two  successive  terms  (unless  the  office  devolved  upon  him) ;  "  and  so 
in  Delaware,  he  is  not  eligible  for  a  third  time  for  the  office.-*    In 

>  N.  D.  38;   S.  D.  3,  4;  Okla.  5,  IS.        "  Ore.,  Va. 

2  Okla.  5,  19.  "  Vt.  2,  30. 

3  Ky.  45;  W.  Va.  6,  14.  i*  Cal. ;  Fla. ;  III;  Ind.;  Md.  2,  5; 
*  See  §  223.  Me.;  Miss.;  N.  Y. ;  S.  C. ;  Tex.; 
«  See  also  §  221.  Utah;  Va.  71 ;  W.  Va.  4,  4;  Wy. 

»  Ark.  6,  5 ;    Col.  4,  4 ;    Del.  3,6;        '»  Del. ;  Ga ;  Ky.  72. 
Ida.  4,  3  ;  Minn.  5,  3  ;  Mon.  7,3;  N.  D.        '"  Ala. ;  Ark. ;  Mass.  2,  2,1,2;  Mo. ; 

73;    N.  Y.  4,  2;     Okla.  6,  3;    Ore.  5,  N.  H.  2,  41;  N.  J.;  Pa.  4,  5;  Tenn. 
2;    Pa.  4,  5;    S.  D.  4,  2;  Tenn.  3,  3;        ^i  l^.,  Md. 
Tex.  4,  4;   Va.  71;    Wis.  5,  2;    Wy.        22  ^^^  u  g  j^  g   i841. 

4,  2.  23  Ark. ;  Ct.  4,  1 ;  Fla. ;  Md. ;  N.  D. ; 
'  lo.  4,  6 ;  Neb.  5,  2.  Nev. ;  S.  D. ;  Utah ;  7,  3 ;  Wis. ;  Wy. 
«  Cal.  5,  3;    111.  5,  5;    Ind.  5,  7;        =*  Cal.,  Minn.,  Nev. 

Mich.  5,  2  ;  N.  C.  3,  2  ;   S.  C.  4,  3.  ^s  ^la.  Ark.,  Col.,  Ct.,  Del.,  Ga.,  Ida., 

«  Ala.  117;   Fla.  4,  3;   La.  63;  Mo.    111.,   Ind.,    lo.,   La.,   Md.,   Me.,   Mich., 

5,  5 ;  Va.  (if  of  foreign  birth).  Miss.,  Mon.,  N.  C,  N.  D.,  Neb.,  N.  H., 
1"  Del.  N.  J.,  N.  Y.,  Okla.,  Ore.,  Pa.,  S.  C, 
"  Ga.  5,  1,  7.  S.  D.,  Tenn.,  Tex.,  Utah,  Va.,  W.  Va., 
12  Miss.  117;  N.  J.  5,  4.  Wy. 

»*  Me.  5,  1,  4.  28  i^y    j^o 

"  Minn.  "  Fla.   4,  2;    Ky.   71;    La.;    Miss. 

•»Col. ;     Ida.;    lo. ;    Mich.;  Miss.;    116;  Mo.  5,  2;  N.  C. ;  N.  J.  5,  3  ;  Okla. 

Mon.;  N.  C;  Neb,;  Nev.  5,  3;  Okla.;    6,  3;  Pa.  4,  3;   Va.  69;  W.  Va.  7,  4. 
S.  C;  S.  D.  28  Del  3^  5^ 


PART   II]  POLITICAL    PROVISIONS  205 

Tennessee,  not  more  than  six  years  in  any  term  of  eight.'  In  Indiana, 
not  more  than  four  years  in  any  term  of  eight."  In  Oregon,  not 
more  than  eight  years  in  any  period  of  twelve.^  In  Georgia  he  is 
not  ehgible  for  four  years  after  a  second  term.* 

Other  executive  offices  must  generally  have  the  same  qualifica- 
tions as  the  governor  and  this  is  frequently  specified  as  to  the 
lieutenant-governor,^ 

Several  States  provide  against  long  periods  of  service  by  the  trea- 
surer or  auditor;  thus,  the  treasurer  is  not  eligible  for  any  two  suc- 
cessive terms,*  or  for  more  than  five  successive  years,^  or  until  two 
years  after  the  end  of  two  successive  terras ;  *  so  the  auditor  is  only 
eligible  for  two  successive  terms ;  ^  and  in  Oregon,  the  treasurer  and 
secretary  are  not  eligible  for  more  than  eight  years  in  any  period  of 
twelve. '"  There  are  certain  other  qualifications  for  the  less  important 
executive  offices  in  several  States  which  it  has  not  seemed  worth  while 
to  set  forth  in  detail." 

§  206.  Paij  of  the  State  Legislature.  Many  state  Constitutions 
provide  that  members  of  the  Legislature  shall  receive  a  fixed  compensa- 
tion ''  which  generally  may  not  be  increased  or  diminished  during  the 
term  for  which  they  are  elected. ^^  In  a  few  States  it  cannot  be  altered 
at  all  by  the  Legislature,  the  salaries  being  fixed  by  the  Constitution.'* 

Similar  principles  apply  to  the  pay  of  all  executive  officers  in  several 

States.'^ 

^  Tenn.  3,  4.  3,  23 ;   111.  4,  21 ;   Ind.  4,  29 ;   lo.  3,  25 ; 

^  Ind.  5,  1.  Kan.  2,  3 ;  Ky.  42  ;  La.  29 ;  Md.  3,  15 ; 

3  Ore.  5,  1.  Me.  4,  3,  7;    Mich.  4,  15;    Minn.  4,  7; 

*  Ga.  5,  1,  2.  Miss.  46;  Mo.  4,  16;   Mon.  5,  5;  N.  C. 

8  Ala. ;    Cal.  5,  15 ;    Col.  4,  4 ;    Ct.  2,  28 ;    N.  D.  45 ;    Neb.  3,  4 ;    Nev.  4, 

4,  3;  Del.  3,  19;  111.  5,  5;  Ind.  5,  7;  33;  N.  H.  2,  14;  N.  J.  4,  4,  7;  N.  Y. 
lo.  4,  6;  Ky.  82;  Mass.  2,  2,  2,  1;  3,  6;  O.  2,  31;  Okla.  5,  21;  Ore.  4, 
Mich.  5,  2;  Minn.  5,  3;  Miss.  5,  14;  29;  Pa.  2,  8;  R.  I.  4,  11 ;  Amt.  11 
Mo.  5,  15 ;  N.  C.  3,  2  ;  Neb.  5,  2 ;  Nev.  (1900,  p.  146) ;    S.  C.  3,  19;  S.  D.  3,  6 

5,  17;  N.  Y.  4,  2;  Okla.  6,  3  &  15;  Tenn.  2,  23;  Terr.  U.  S.  R.  S.  1853 
Pa.  4,  5 ;  S.  C.  4,  5 ;  Vt.  2,  30 ;  Wis.  1878,  329 ;  Tex.  3,  24 ;  Utah  6,  9 
5,  2.  Va.  45 ;    Wash.  2,  23 ;    W.  Va.  6,  33 

«  Ky.  93;    La.  80;  Mon.  7,  1;    Mo.  Wis.  4,  21;  Wy.  3,  6. 

5,  2;    Utah;  N.  D.  82;    S.  D.  4,  12;  '^  Ark.;   Cal.;   Col.;  Ct.  4,  4;   Ind. 

Miss.;  Wash.  3,  25;  Wy.  4,  11.  lo. ;     Ky.    74;     Me.;     Minn.;     Miss. 

^Col.  4,  21;    Mass.  2,  2,  4,  1 ;    Me.  Mon.    5,    5    &    8;    Nev.;    O. ;    Pa. 

5,  4,  1 ;  Pa.  4,  21.  S.  C. ;   Utah;    Va.  72;   Wy.  3,  9. 

«  111.  5,  2;  Neb.  5,  3.  »*  Mo.,  Tex. 

»  Col.,  Pa.  "  Ala.  118;  Ark.  19,  11 ;  Cal.  5,  19 

'0  Ore.  6,  1.  Col.;    Ida.  4,   19;    111.  5,  23;    Kan. 

>'  Ky.  93;  Mon.  7,  3.  Ky.  235;    N.  C.  3,  15;  N.  H.  2,  17;  N 

'2  Ala.    49;    Ariz.*    1139;    Ark.    5,  D.  84;  N.  Y. ;  O.  2,  19;   S.  D.  21,2 

16;  Cal.  4,  23;  Col.  5,  6;  Ct.  Amt.  27;  Utah;  Wash.  3,  14;  Wy.  4,  13. 
Del.  2,  15 ;  Fla.  3,  4  ;  Ga.  3,  9,  1 ;   Ida. 


206  Till':  STATi;  constitutions  [book  hi 

When  tlie  pay  of  tlio  Lrj^islatun'  is  fixed  l)y  the  Constitution, or  the 
term  for  whieli  they  are  j)ai(l  limited  (see  §  277),  the  provision  be- 
comes more  important,  as  in  a  certain  measure  determining  the 
lengtli  of  legishitive  sessions.  Tlius,  in  New  Hampshire,  in  the  case 
of  a  special  session,  legislators  receive  three  dollars  a  day,  but  for  a 
period  not  exceeding  fifteen  days,  and  the  total  pay  for  any  regular 
session  is  two  hundred  dollars  with  mileage.  See  also  §  277.  Mileage 
is  given  in  most  States. 

This  pay  would  doubtless  be  understood  to  be  all  that  a  member 
of  a  state  Legislature  could  receive  in  any  manner,  direct  or  indirect, 
for  performing  the  duties  of  his  office  without  being  liable  for  bribery 
or  malfeasance,  and  the  Constitution  of  INIississippi  expressly  provides 
that  no  member  can  take  a  fee  or  act  as  counsel  before  either  House.' 


Article  21.     Of  Offices  ix  General 

§  210.  Appointment.  (For  the  important  executive  officers  and 
the  members  of  the  Legislature,  see  Art.  20;  for  the  judicial  officers, 
see  Art.  65.) 

Generally  speaking,  it  may  be  stated  that  all  State  officers  except 
such  important  executive  officers  or  judges  as  are  elected  by  the 
people  of  the  State  or  the  several  districts  are  appointed  by  the  gov- 
ernor,- in  Massachusetts,  INIaine,  and  New  Hampshire,  with  the 
consent  of  the  Council,^  and  very  generally  this  appointment  must 
be  confirmed  by  the  Senate.^  Other  officers  are  to  be  appointed  or 
elected  as  the  Legislature  may  provide.^  INIost  State  Constitutions 
provide  with  considerable  detail  what  officers  shall  be  elected  by  the 
people  of  the  several  counties,  towns,  or  districts,  usually  solicitors 
or  district  attorneys,  sheriffs,  registers  of  deeds  and  probate,  county 
treasurers,  and  so  on.  It  has  not  seemed  worth  while  to  go  into  this 
matter  in  more  detail. 

§  211.    Vacancies  in  any  office  whatever  (except  members  of  the 

1  Miss.  47.  *  Col.,    Del.,    Ida.,    Ill,    La.,    Md., 

2  Col.  4,  6;  Del.  3,  9;  Ida.  4,  6;  111.   Minn.,  N.  C,  Neb.,  N.  J.,  Pa.,  Territo- 
5,  10 ;   La.  71 ;   Md.  2,  10 ;   Minn.  5,  4 ;    ries,  Utah,  W.  Va. 

Mo.  5,  23;    Mon.  7,  7;    N.  C.  3,  10;         *  Cal.  20,  4;   Fla.  3,  27;   Ind.  15,  1; 

Neb.  5,  10;    N.  J.  7,  2,  9 ;    Pa.  4,  8;  Kan.  2,  19  &  15,  1;  Ky.  93;  Mo.  14,9; 

Territories,  U.  S.  R.  S.  1857;    Utah  7,  Neb.  5,   1;    Amt.  1883,  Nev.   15,  10; 

10 ;   Vt.  2,  11 ;  W.  Va.  7,  8.  N.  H.  2,  5 ;  O.  2,  27 ;  Ore.  6,  7 ;  Pa.  12, 

3  Mass.  2,  2,  1,  9;  2,  1,  1,  4;   Me.  5,  1 ;   Tenn.  7,  4;   Territories;   W.  Va.  4, 
1,  8;   N.  H.  2,  45.  8;   Wis.  13,  9;   Wy.  6,  12  (6). 


PART   II  ]  POLITICAL   PROVISIONS  207 

Legislature  and  the  governor  or  lieutenant-governor  or  other  high 
executive  offices)  are  usually  filled  by  the  governor  with  the  consent 
of  the  council,  when  there  is  one,  or  in  some  States  of  the  Senate,  but 
in  other  States  the  whole  matter  of  filling  vacancies  is  left  to  the 
Legislature.  ^Yhere  nothing  is  said,  all  offices  would  presumably  be 
filled  in  the  same  manner  as  the  original  appointment  (see  §  210). 
So,  vacancies  in  elective  offices  are  filled  at  the  next  regular  election. 

§  212.  Tenure.  A  few  States  have  the  general  provision  that  no 
office  can  be  granted  for  a  longer  term  than  during  good  behavior,^ 
while  in  three  States  no  person  shall  be  elected  or  appointed  to  office 
for  life  or  during  good  behavior,  but  the  terms  of  all  offices  shall  be 
for  some  specified  period  (except  notaries  and  in  the  militia).-  In 
several  States  no  office  can  be  created  by  the  Legislature  for  a  longer 
term  than  four  years,^  or  in  Texas,  two  years.* 

It  is  usually  provided  that  all  officers  (except  in  case  of  impeach- 
ment or  suspension)  shall  continue  to  discharge  their  duties  until 
their  successors  are  duly  appointed  and  qualified ;  ^  and  in  some 
States  this  provision  is  expressly  made  of  the  governor  or  other  exec- 
utive officers.'^  No  law  can  be  passed  which  shall  operate  to  extend 
the  term  of  any  public  officer  after  his  election  or  appointment.^ 

Rotation  in  office  is  still,  by  the  Constitutions  of  Massachusetts, 
Maryland,  and  Virginia,  declared  to  be  a  necessary  principle  in  a 
free  government.^ 

§  213.  Pay.  The  State  Constitutions  frequently  provide  that  all 
officers  are  to  receive  a  compensation  fixed  by  law,  reasonable  in 
amount,  and  paid  at  stated  periods.^  In  some,  a  limit  of  salaries  is 
fixed  by  the  Constitution.**'    In  Vermont  all  offices  of  profit  are  for- 

1  Ala.  1,  29  ;  Del.  1,  19 ;  Me.  1,  23 ;  Miss.  5,  22 ;  Mo.  5,  2 ;  Mon.  7,  1 ;  N.  C. 
Pa.  1,  24.  3,  1 ;  N.  D. ;  Nev.  5,  2 ;  5,  19 ;  N.  J.  7, 

2  Ky.  23;  Miss.  20;  S.  C.  1,  11.  2,3;   Pa.  4,  17;   R.  I.  8,  1 ;   S.  C.  4,  2 ; 

3  Cal.  20,  16 ;  Fla.  16,  7  ;  Ind.  15,  2 ;  S.  D.  5,  36 ;  Tenn.  3,  4 ;  Tex.  4,  4  ;  4, 
Kan.  15,  2;  Miss.  252;  Nev.  15,  11;  22;  4,  23;  Vt.  Amt.  21;  Wash.  3,  2; 
Ore.  15,  2.  Wy.  4,  1. 

*  Tex.  16,  30.  '  Col.  5,  30;   Del.  15,  4;    111.  4,  28; 

*  Ark.  19,  5;  Col.  12,  1;  Del.  15,  5;  Mo.  14,  8;  Mon.  5,  31;  Okla. ;  Pa.  3, 
Fla.  16,  14;   Ind.  15,3;  La.  172;  Miss.    13;    W.  Va.  6,  37;    Wy.  3,  32. 

136;    Mo.  14,  5;   O.  Sched.  10;    Okla.         »  Mass.  1,  8;  Md.  1,  34;   Va.  1,  5. 
23,  10;   Ore.  15,  1;   R.  I.  4,  16;  Tenn.         »  Ala.   118;    Ark.   16,  4;    Ky.  96; 

7,  5 ;  Tex.  16,  17 ;   Va.  33 ;   W.  Va.  4,  La.  81 ;    Miss.  103 ;    Mo.  5,  24 ;    Okla. 

6;   Wy.  6,  12.  6,  34;    Ore.  13,  1;    N.  Y.  10,  9;   Tex. 

*  Ark.  6,  1 ;   Ct.  4,  1 ;   Ga.  3,  4,  1 ;  3,  44 ;   Va.  83. 

5,1,2;  111.5,1;  lo.  3,  3;  4,2;  5,12;  "Ark.  19,  23;  Ky.  246  ($5000); 
Kan.  1,1;  Ky.  73 ;  La.  64  ;  Mass.  Amt.  La. ;  Md.  15,  1 ;  Mich.  9,  1 ;  Amt.  1893, 
17 ;  Md.  2,  1 ;  5,  1 ;  Minn.  5,  3 ;  5,  5 ;     p.  433 ;   S.  D.  21,  2. 


208  THE    STATE    CONSTITUTIONS  [bOOK    III 

l>iddcii,  hut  fees  or  a  reasoniihle  compensation  may  be  allowed.' 
In  two  States  all  fees  and  perquisites  are  forbidden,-  and  the  Legisla- 
ture may  not  increase  the  expenses  of  any  office  by  appointing 
assistant  officers.^ 

§  214.  Extra  Pay.  ^  ery  generally  this  compensation  may  not 
be  increased  or  diminished  during  the  term  of  office ;  and  the  Legis- 
lature can  grant  no  extra  compensation  after  the  service  is  ended  or 
after  the  contract  is  entered  into.*  Nor  can  it  authorize  municipal 
corporations  to  grant  such  compensation.^  In  two  States,  salaries  of 
deceased  officers  may  not  be  paid  beyond  the  date  of  death,"  and  it 
would  seem  that  this  must  be  the  law  in  others.^ 

§  215.  Farming  Offices.  By  the  Constitutions  of  three  States,  no 
person  elected  or  appointed  to  any  oflBce  under  the  laws  of  the  State 
or  any  municipal  ordinance  shall  hold  such  office  without  personally 
devoting  his  time  to  the  performance  of  its  duties.^ 

§  216.  Gerrymandering.  The  Constitutions  of  California  and 
Idaho  provide  that  when  a  congressional  district  shall  be  composed 
of  two  or  more  counties,  it  shall  not  be  separated  by  any  county  be- 
longing to  another  district;  nor  can  a  county  or  city  be  divided  to 
form  congressional  districts,  except  when  rendered  necessary  by 
excess  of  population.^  In  four,  the  congressional  districts  shall  be 
formed  of  contiguous  counties,  &c.,  and  be  "compact."^" 

There  are  in  nearly  all  States  provisions  of  the  same  nature  as  to 
districts  electing  members  of  the  State  Legislature,  and  in  Oklahoma 
an  apportionment  made  by  the  Legislature  is  reviewable  by  the 
Supreme  Court  at  suit  of  any  citizen." 

§  217.  Election  of  United  States  Officers.  The  Constitutions  of 
several  States  provide  that  senators  shall  be  elected  by  the  two  houses 
of  the  Legislature  in  joint  convention,  at  such  time  and  in  such  man- 


1  Vt.  2,  25.  12,  3 ;  Utah  6,  30 ;  Tex.  3,  44 ;  W.  Va. 

=^  La.  180;  Okla.  6,  38;   Wash.  2,  25;   Wis.  4,  26;    Wy. 

«  La.  54.  3,  30;    3,  32;    4,  13. 

*  Ala.  68,  98,  118,  281 ;  Ark.  5,  27 ;  «   Ala. ;  Cal. ;  Ct. ;  La. ;  Mo. ;  N.  Y. ; 

Cal.  4,  32 ;  Col.  5,  28  &  30 ;    Ct.  Amt.  Tex.  3,  53. 

24;   Del.  15,  4;   Fla.  16,  11;  Ga.  7,  16,  »  Ala.  97;   S.  C.  3,  32. 

2 ;  Ida.  5,  27 ;  111.  4,  19 ;  lo.  3,  31 ;  Ky.  ^  Compare  also  §  395. 

235;   La.  47;   Md.  3,  35;   Mich.  4,  21 ;  »  Col.  12,  2;   Mo.  2,  18;   Miss.  267; 

Miss.    96;    Mo.  4,  48;    5,  24;    14,  8;  Okla.  2,  11. 

Mon.  5,  29  &  31;    7,  4;    Neb.  3,  16;  »  Cal.  4,  27;  Ida.  3,  5. 

Nev.  4,  28;   15,  9;  N.  Y.  6,  12;  3,  28;  ">  Mon.  6,  3;   Va.  55;   W.  Va.  4,  6; 

10,  9 ;  O.  2,  20  &  29 ;  Okla.  5,  47 ;  23,  Wy.  3,  46. 

10;  Pa.  3,  11  &  13;  S.  C.  3,  30;  S.  D.  "  Okla.  5,  10  (j). 


PART  II]  POLITICAL   PROVISIONS  209 

ner  as  may  be  by  law  provided.'  In  Nebraska  the  Legislature  may 
provide  that  at  the  general  election  next  preceding  the  expiration  of 
tiie  term  of  a  United  States  senator,  the  electors  may  by  ballot  express 
their  preference  for  some  person  for  such  office."  In  Oklahoma  ^  the 
Legislature  shall  provide  for  their  election  by  direct  vote  of  the  peo- 
ple "at  any  time  the  Federal  Constitution  may  permit."  By  the 
Constitution  of  Florida,  no  person  can  receive  credentials  as  a  mem- 
ber of  Congress  who  has  not  been  five  years  a  citizen  of  the  State 
and  ten  years  a  citizen  of  the  United  States  and  is  not  a  qualified 
voter.* 

In  Colorado,  one  representative  in  Congress  is  elected  for  the 
State  at  large.^  Presidential  electors  must,  in  Colorado,  be  elected 
by  the  people;  and  it  was  so  prescribed  in  the  old  Constitution  of 
South  Carolina,  but  seems  to  be  omitted  from  the  present  one. 
There  is,  of  course,  nothing  in  the  Federal  Constitution  (Art.  2,  1) 
to  prevent  a  State  from  appointing  the  electors  in  such  manner  as  the 
Legislature  direct,  or  by  direct  choice  of  the  Legislature  itself,  if  the 
State  Constitution  were  so  to  provide.  Michigan  and  other  States 
in  fact  elect  them  by  districts. 

Territorial  delegates  are  elected  by  the  people,  one  from  each 
territory.^ 

§  218.  Corruption.  State  officers  may  not  be  interested  in  con- 
tracts awarded  by  their  department.^ 


Article  22.    Qualifications  for  Office 

§  220.  Plurality  of  Offices.  Nearly  all  the  States  have  provisions 
that  no  person  can  hold  at  the  same  time  a  State  office  and  a  national 
office  of  trust  or  profit,  or  at  the  same  time  two  State  offices  of  trust 
or  profit,  and  this  applies  as  well  to  seats  in  the  Legislature  as  to 
other  offices.  The  only  exception  is  commonly  that  of  justices  of  the 
peace  and  officers  in  the  militia.  Generally  the  holding  of  such  other 
office,  State  or  national,  or  under  any  foreign  government,  would 
make  the  person  ineligible  for  a  State  office;  and  if  already  holding 
a  seat  in  the  Legislature  or  other  State  office,  his  acceptance  of  such 

»  Fla.  3,  31;    Minn.  4,  26;    Nev.  4,  *  Fla.  16,  20. 

34;   R.  I.  4,  18.  =  Col.  5,  44. 

2  Neb.  Sep.  Prop.  »  U.  S.  R.  S.  1862. 

»  Okla.  3,  4.  '  Del.  15,  8.    See  also  §  304. 

14 


210  THE    STATE    CONSTITUTIONS  [BOOK    III 

otlier  office,  State  or  national,  would  vacate  his  seat  or  amount  to  a 
resignation.  The  State  Constitutions  provide  for  this  subject  with 
endless  and,  it  seems,  unnecessary  detail. 

§  221.  Age  and  Citizenship.  There  is  not  usually  much  pro- 
vision about  age  and  citizenship  qualifications  for  ordinary  offices; 
but  in  many  States  no  one  who  does  not  possess  the  (pialifications  of 
an  elector  is  eligible  for  office.'  A  few  States  make  residence  in  the 
State  for  one  year  a  necessary  qualification  for  any  office;  -  and  in  a 
few  others  he  must  continue  to  reside  within  the  State  or  forfeit  his 
office.'     (For  judges,  see  Art.  Go.) 

A  few  State  Constitutions  specially  provide  that  there  shall  be  no 
property  qualification  for  holding  office ; "  and  in  New  Hampshire 
and  South  Carolina,  every  inhabitant  of  the  State  having  the  proper 
qualification  has  equal  right  to  be  elected  into  office,^  but  in  New 
Hampshire  he  must  be  able  to  read  the  State  Constitution  in  English, 
and  to  write. 

§  222.  Disqualifications.  The  State  Constitutions  very  frequently 
provide  that  no  person  convicted  of  crime  can  hold  office,  and  more 
particularly  any  person  convicted  of  bribery,  election  frauds,  defal- 
cation of  public  money,  or  duelling,  the  attention  of  State  Legisla- 
tures having  of  late  years  been  especially  called  to  the  advisability  of 
such  disqualifications.  Thus,  many  States  provide  generally  that  no 
person  convicted  of  felony  or  infamous  crime  can  hold  office,®  or,  in 
Kentucky,  "  high  misdemeanors."  The  special  crimes  thus  disquali- 
fying are  defalcation  or  embezzlement  of  public  ^  money, ^  or  the  case 
where  any  person  remains  liable  for  public  moneys  unaccounted  for, 
whether  actually  convicted  of  defalcation  or  not.**  Bribery  is  gener- 
ally a  disqualification  for  holding  office,  both  of  the  party  giving 

1  Ark.  19,  3;  Col.  7,  6;  Ct.  6,  4;  Del.  2,  21;  Fla.  6,  5;  Ga.  2,  21 ;  Ida. 
La.  210;  Minn.  7,  7;  Miss.  250;  Mon.  6,  3;  111.4,  4;  Ky.  150;  La.  202; 
9,  7  &  11;  N.  H.  1,  14;  Nev.  15,  3;  Minn.  4,  15;  Miss.  44;  N.  C.  6,  5; 
N.  C.  6,  7;  Amt.  1900;  O.  15,  4;  S.  C.  N.  D.  2,  38;  Neb.  14,  2;  O.  5,  4;  Pa. 
2,  2;    17,    1;    Wash.  3,   25;   Va.  32;  2,7;  Tex.  16.  2;   Wis.  13,3. 

W.  Va.  4,  4 ;  Wy.  6,  12  (3).  '  Ky.  45  (for  the  legislature  only). 

2  111.,  Mo.,  Mon.  «  Ala.;   Ark.  5,  9;   Cal.  4,  21;   Col. 

3  Ark.  19,  4;  Del.  3,  11;  Ky.  234;  12,  4;  Del.  2,  21;  Fla.;  Ga. ;  Ida.; 
235 ;  La. ;  R.  I.  9,  1 ;  Tex.  16,  14.  La.   182 ;  Nev.  4,   10 ;    Pa. ;    O.  ?,  5 ; 

*  Cal.  1,  24;  Del.  7,  12;   Ida.  1,  20;  S.  C.  10,  12;  Wis.  13,  3. 
Kan.  Bill  of  Rts.  7 ;  Minn.  1,  17 ;  N.  C.         «  Ark.  5,  8 ;   Col.  12,  3  ;   Ga.  2,4,1; 

1,22;  Utah  1,  4.  111.4,4;  Ind.  2,  10;  lo.  3,23;  Ky.  45; 

«  N.  H.   1,    11;    S.    C.    1,    10.     See  La.  182;  Md.  3,  12 ;  Mich.  4,  30;  Miss, 

also  §  246.  43 ;    Mo.  2,  19  ;   Neb.  16,  2 ;    O. ;   Ore. 

"  Ala.  60;    Ark.  5,  9;    Cal.  20,  11;  2,  11;   Tenn.  2,  25;   Tex.  3,  20. 


PART   II]  POLITICAL    PROVISIONS  211 

and  the  party  receiving  the  bribe.'  So  specially  in  a  few  States  brib- 
ery at  elections,-  but  in  some  only  as  to  the  person  offering  the  bribe. 
The  giving  or  offering  a  bribe  to  procure  the  election  or  appointment 
of  the  guilty  party  disqualifies  him  for  that  term  of  office  in  many 
States,^  and  in  a  few  permanently.''  So,  in  some  States  specially  the 
bribery  of  members  of  the  Legislature/  or  "treating."  ® 

In  Kentucky,  corporations  bribing  or  offering  bribes  forfeit  their 
charters,  or  foreign  corporations  their  license.' 

A  few  States  have  the  general  provision  that  malfeasance  in  office 
shall  be  a  disqualification,**  but  it  would  seem  difficult  to  determine 
this  without  process  of  impeachment,  to  which  the  guilty  party  is 
nearly  always  liable.  And  so,  in  a  few  States,  corruption  in  office,^ 
malpractice,'"  taking  more  fees  than  the  law  allows,"  or  generally  the 
violation  of  the  oath  of  office. '- 

Betting  on  elections  was,  by  the  old  Constitution  of  Florida,  cause 
for  the  disqualification  for  office,  and  now  in  South  Carolina,  gam- 
bling,'^ and  in  two  States,  fraud  or  wilful  violation  of  the  laws'* 
(whether  a  candidate  for  office  or  not). 

Ordinary  crimes  are  not  made  by  the  State  Constitutions  cause  for 
general  disqualification  for  office  (see  §  206  for  disqualification  for 
Legislature),  but  several  State  Constitutions  so  prescribe  in  case  of 
perjury,'^  and  a  few  in  the  case  of  larceny,'"  forgery, ''^  and  treason.'^ 
Idaho  makes  the  practice  of  polygamy  or  professing  IMormonism 
a  cause  for  disqualification.'^ 

Duelling,  however,  is  by  the  Constitutions  of  a  great  many  States 
made  cause  for  disqualification  for  office,  for  either  fighting  a  duel 

1  Ala.  60;    Ark.  5,  9;    Cal.  20,  11;  «  Tenn. 

Col.  12,  4 ;   Fla. ;  Ga.  2,  2,  1 ;   111.  4,  4 ;  ^  Ky.  150. 

Ky.  151;    La.  183;    Md.  3,  50;    Minn.  «  Cal,  Ga. 

4,  15;    Miss.  44;    O.  5,  4 ;    Pa.;    Tex.  »  N.  C,  Ga. 

16,  2;    Wash.  2,  30;    W.  Va.  6,  45.  "  N.  C. 

The  same  is  implied  in  other  States.  "  Vt.  2,  25. 

See  §  152.  ''  111.  4,  5;    Md.   1,  7;    Mo.  4,  15; 

■  Ark.  3,  6  (but   there  must  be   a  N.  H. ;  Neb.  14,  1 ;  Okla.  15,  2 ;   S.  D. 

conviction  of  actual  bribery) ;  Ga.  2,  2,  3,  8;    W.  Va.  6,  16;    Wy.  0,  12   (9). 

1;    Ida.    La.;  Md.  1,  3;  Miss.;   Mass,  See  §  223. 

2,  6,  2;    Nev.    4,    10;    N.   H.  2,  96;  '^  S.  C.  17,  8. 

Tex.  16,  5.  '*  Ark.  3,  6 ;   Pa.  8,  9. 

^  Ind.  2,  6;    Kan.  5,  6;    Ky.  150;  ">  Ala.;  Cal.;  Col.  12,  4;  Del.;  Fla.; 

Mass. ;   N.  H. ;   Ore.  2,7;    R.  I.  9,  2 ;  111. ;    Ky. ;    Minn. ;    N.  C. ;    O. ;    Pa. ; 

Tenn.  10,  3  ;  Tex.  16,  5 ;  Vt.  2,  34.  Tex. 

*  Cal.  20,  10 ;  Pa.  8,  9.  '«  Ga. 

*  W.  Va.     In  one,  only  the  member  *'  Ark.,  Cal.,  Tex. 
of   the    Legislature   is   so   disqualified  **  Ga.,  N.  C. 
(Cal.  4,  35.    See  §  276.)  "  Ida.  6,  3. 


212  THE    STATE   CONSTITUTIONS  [BOOK    III 

as  principal/  or  absence  from  the  State  for  that  purpose,-  or  being  a 
second,''  or  tlie  giving,  carrying,  or  accepting  a  challenge,'  or  the 
being  engaged  in  a  duel  in  any  State  or  country  as  either  principal 
or  accessory.^ 

The  Constitutions  of  a  few  States  prescribe  that  no  insane  person 
or  idiot  can  hold  oflice."  The  provision  would  seem  to  be  unnecessary. 

In  two,  no  minister  or  preacher  of  any  religious  denomination  can 
be  a  member  of  the  Legislature.' 

By  the  United  States  statutes,  no  soldier,  seaman,  or  marine  in  the 
regular  army  or  navy  of  the  United  States  can  hold  a  State  office.* 

The  Louisiana  Constitution  disqualifies  paupers  or  inmates  of 
charitable  institutions."  The  same  is  probably  provided  by  the  stat- 
utes of  most  other  States. 

Idaho  has  a  general  provision  that  the  disqualifications  for  office 
are  the  same  as  for  voting.  ^^  There  is  an  extraordinary  provision  in 
Utah.  No  officer,  employee,  attorney  or  agent  of  any  corporation, 
company,  or  association  doing  business  under,  or  by  virtue  of,  any 
municipal  charter  or  franchise,  shall  be  eligible  to  or  permitted  to 
hold  any  municipal  office  in  the  municipality  granting  such  charter 
or  franchise." 

§  223.  Oath  of  Office.  Members  of  the  Legislature  and  other 
State  officers,  executive,  judicial,  or  otherwise,  are  usually  required 
to  make  oath  to  support  the  national  and  State  Constitutions  and 
faithfully  discharge  the  duties  of  their  office.  Citations  on  this  point 
seem  unnecessary ;  but  in  three  New  England  States  they  only  make 
oath  to  bear  allegiance  to  the  State,  and  support  the  State  Constitu- 
tion.'" In  a  few  they  must  make  oath  that  they  have  not,  directly  or 
indirectly,  paid,  or  offered  to  pay,  any  consideration,  or  made  any 
promise,  as  a  reward  for  the  giving  or  withholding  a  vote  at  an  elec- 
tion ;  '^  or  for  their  own  election  or  nomination ;  '*  that  they  will  not 


»  Ark.  19,  2  ;  Cal.  20,  2 ;  Col.  12,  12 
Ga.  2,  4,  2;  Ind.  2,  7;  lo.  1,5;  Md.  3 
41;  Mich.  7,  8;  Miss.  19;  Mo.  14,  3 
N.  C.  14,  2  ;  Nev.  15,  3 ;  O.  15,  5 ;  Ore 
2,  9 ;  Pa.  12,  3  ;  S.  C.  1,  11 ;  Tenn.  9,  3 
Tex.  16,  4 ;  Wis.  13,  2  ;  W.  Va.  4,  10.  «  U.  S.  R.  S.  1860. 

2  Col. ;     Ind. ;     Kan.    5,    5 ;     Md. ;         "  La.  202. 
Miss. ;  Mo. ;  N.  C. ;  Nev. ;  Ore. ;  Tex.  '"  Ida.  6,  3. 

*  Ark.,  Cal.,  Col,  Md.,  Mo.,  N.  C,        "  Utah  12,  17. 
Nev.,  O.,  Pa.,  Tex.,  W.  Va.  '-  Mass.  Ami.  6;    N.  H.  2,  83;    Vt 


'  Cal.,  Ga.,  lo.,  Md.,  Mich.,  Nev., 
S.  C,  Tenn.,  Tex.,  W.  Va.,  Wis. 

«  Ga.  2,  2,  1 ;  Ida.  6,  4 ;  La.  202. 
See  §  251. 

'  Md.  3,  11;  Tenn.  9,  1. 


Ark.;  Cal.;  Col.;  Ga. ;  Ind. 
Kan.;  Ky.  239;  Md. ;  Mo.;  N.  C. 
Nev. ;    O. ;    Ore. ;    Pa. ;    S.  C. ;   Tenn, 


2,  12;  2,  29. 

>»  Del.,  111.,  Mon.,  Neb.,  N.  Y.,  Pa., 
S.  D.,  Tex.,  Wy.    See  also  §  154. 


Tex.;   W.  Va.  "  Mon.,  Okla.,  S.  D.,  Wy. 


PART    ll]  POLITICAL    PROVISIONS  213 

accept,  or  directly  or  indirectly  receive,  any  valuable  consideration  for 
the  giving  or  withholding  a  vote,'  or  for  the  doing  or  not  doing  any 
duty  relating  to  their  office ;  ^  that  they  have  not  been  concerned  in  a 
duel  as  above  specified ;  ^  that  they  have  not  violated  any  election 
law ;  *  that  they  are  not  disqualified  for  holding  office  under  the 
national  or  State  Constitutions ;  ■'  that  they  will  not  receive  the  profits 
of  any  other  office  during  their  term  as  governor,  member  of  the  Leg- 
islature, or  judge;  ^  that  they  hold  no  office  of  profit  or  trust  under 
Congress.^ 

Violation  of  the  oath  of  office  is  in  a  few  States  declared  to  be  per- 
jury.^ Any  officer  convicted  of  having  sworn  falsely  to,  or  violated, 
his  oath  of  office  forfeits  it."  And  he  is  always  liable  to  impeach- 
ment. 

§  224.  Official  Bonds.  The  Legislature  shall  fix  the  amount  of 
the  penalty  of  all  official  bonds,  and  may,  as  far  as  practicable,  pro- 
vide that  the  whole  or  a  part  of  the  security  required  for  the  faithful 
discharge  of  official  duty  shall  be  made  by  some  guarantee  company 
or  companies.'" 

§  225.  Political  Tests.  The  Constitution  of  West  Virginia  de- 
clares political  tests  which  require  persons,  as  a  prerequisite  to  the 
enjoyment  of  their  civil  and  political  rights,  to  purge  themselves  by 
their  own  oaths  of  past  alleged  offences,  are  repugnant  to  the  princi- 
ples of  a  free  government,  cruel,  and  oppressive.'^ 


Article  23.  Elections 

§  230.     General  Provisions.     The  Constitutions  of  many  States 
declare  that  all  elections  should  be  free.^^    Of  five,  that  they  shall 

*  111. ;     Neb. ;     Pa. ;     Tenn.    10,   2 ;  ment  for  having   participated   in  the 
W.  Va.  6,  16.  Rebellion  came  to  naught,  partly  by 

2  Mo.,  Mon.,  Okla.,  Pa.,  S.  D.,  Wy.  voluntary   repeal   of   the   proscription, 

^  Ky.,  Nev.,  S.  C,  Tex.  but   mainly   because   decisions   of   the 

*  Mon.,  Okla.,  Pa.,  Wy.  United  States  Supreme  Court  rendered 

*  Fla.,  S.  C.  the  enforcement  of   such  laws  by  test 

*  Md.  oaths  impracticable. 

'  Vt.  Amt.  1883.  '-  Ark.  3,  2;    Col.  2,  5;    Del.  1,  3; 

«  See  §  222.  111.  2,  18 ;  Ind.  2,  1 ;  Ky.  6 ;  Mass.  1,  9 ; 

»  111.  4,  5;    Md.  1,  7;    Neb.  14,  1;  Md.  Decln.  of  Rts.  7;   Mo.  2,  9;   Mon. 

Okla. ;   S.  D. ;   Wy.  3,  5 ;  N.  C.  1,  10 ;  Neb.  1,  22 ;  N.  H.  1, 

•0  Miss.  82.  11;    Okla.  3,  7;    Ore.  2,  1 ;    Pa.  1,  5; 

'1  W.  Va.  3,  11.    The  attempt  of  the  S.  C.  1,  10;    S.  D.  6,  19;    Tenn.  1,  5; 

United    States    Government    to    dis-  Utah  1,17;   Va.  1,  6;   Vt.  1,8;  2,34; 

quahfy  persons  from  office  or  employ-  Wash.  1,  19;   Wy.  1,  27.    A  principle 


214  THE   STATE   CONSTITUTIONS  [bOOK   III 

be  open,'  or  "not  secret,  nor  the  ballots  counted  in  secret;"  ^  that 
they  shall  be  equal  ^  and  frequent/  So,  in  others,  that  no  power, 
civil  or  military,  shall  ever  interfere  with  the  free  exercise  of  the 
right  of  suffrage.* 

§  231.  Votes-  by  Ballot.  The  Constitutions  of  many  States  pro- 
vide that  all  elections  shall  be  by  ballot."  So,  in  most,  all  elections  by 
the  people.^  So,  "until  the  Legislature  otherwise  direct."  *  And  all 
elections  by  the  Legislature,  or  by  the  people  in  a  representative 
capacity,  must  be  viva  voce  °  (see  also  §  30G). 

The  ballot  box  must  be  kept  in  public  view.'"  The  counting  must 
be  public."  But  the  secrecy  of  the  ballot  shall  be  maintained. '-  Vot- 
ing machines  may  be  used.'^    But  ballots  may  be  numbered.''' 

§  232.  Majority  Vote.  By  the  Constitutions  of  nearly  all,  the 
person  having  the  highest  number  (i.  e.,  a  plurality)  of  votes  is  de- 
clared elected.'*    And  so,  a  plurality  of  votes  given  at  any  elec- 

dating   from   very    early    statutes    in  S.  D.  3,  14;   Tenn. ;   Tex.  3,  41;    Va. ; 

England,  and  confirmed  in  the  Bill  of  Wash.  2,  27;  W.  Va.  6,  44;  Wis.  4,  30. 

Rights.  '"  Va. 

»  Col.,  Mo.,  Mon.,  S.  C,  Wy.  "  La. 

"'  S.  C.  '=  Cal.,  Ida.,  Ky.,  N.  D.,  N.  Y.,  Pa., 

»  Ark.,    Del.,  111.,  Ind.,  Ky.,  Mass.,  Utah,  Va.,  Wash.,  Wy. 

Ore.,  Pa.,  S.  D.,  Tenn.,  Wash.,  Wy.  »  Col.;  Cal.;  Ct. ;  Amt.  23;  Utah; 

*  Md.;  N.  C.  1,  28.  Va.  37. 

«Ark.;     Col.;     Ida.    1,    19;     Mo.;  "  Col..  R.  D.:   Texas  1S91.  p.  104. 

Mon.;    Neb.;    Okla.  2,  4;    Pa.;    S.  C.  '^  Ala.  115;  Ariz.*  1373;  Ark.  6,  3; 

2,  15 ;   S.  D. ;   Utah ;   Wash. ;   Wy.  Cal.    5,    4 ;    Col.    4,    3 ;    Ct.    Amt.    3 ; 

*  Cal.  1895,  p.  407;  Del.  5,  1;  111.  D.  C*  99-100;  Del.  3,  3;  Ida.  4,  2; 
7,  2;  lo.  2,  6;  Md.  1,  1;  Mich.  7,  2;  111.  5,  4;  Ind.  5,  5;  lo.  4,  4 ;  Kan.  1, 
Minn.  7,  6;  Neb.  7,  6;  N.  Y.  2,  5;  O.  2;  Ky.  70;  La.  62;  Mass.  Amt.  14; 
5,2;  Pa.  1901,  p.  882;  Utah  4,8;  W.  Md.  2,  3;  15,  4;  Me.  4,  1,  5;  4,  2, 
Va.  4,  2  ;  Wis.  3,  3.  5 ;   5,  1,  3  ;   Amts.  Art.  24 ;  Mich.  5,  3 ; 

^  Ala.  179;  Ariz.  *  1358;  Ark.  3,  3;  Mo.   5,    3;    Mon.  7,   2;    N.   C.   3,   3; 

Cal.  2,  5;   Col.  7,8;    1905,  p.  84;   Ct.  N.  D.  74;   Neb.  5,  4;  Nev.  5,  4;   N.  J. 

6,  7 ;   Amt.  6 ;   Fla.  6,  6 ;   Ga.  2,  1,  1 ;  5,  2 ;  N.  M.*  63,  28 ;  N.  Y.  4,  3  ;   1898, 

Ida.  6,  1;    Ind.  2,  13;   Kan.  4,  1;   Ky.  p.  1550;   O.  3,  3;   Ore.  5,  5;   Pa.  4,  2; 

147;    La.  203;    Mass.  2,  1,  3,  3;    Me.  R.  I.  Amt.  10;   S.  C.  4,  4;    S.  D.  4,  3; 

2,  1 ;   Miss.  240 ;   Mo.  8,  3 ;   Mon.  9,  1 ;  Tenn.  3,  2 ;    Territories,   U.  S.   R.  S. 

N.  C.  6,  6;  N.  D.  129;  Nev.2,  5;  N.  H.  1847;   Tex.  4,  3;    Utah  7,  2;    Va.  70; 

2,  14   &  42;    N.   M.*    63,   22;    Okla.  Vt.  Amt.  5;   Wash.  3,  4;  W.  Va.  7,  3 ; 

3,  6;  Pa.  8,  4;  R.  I.  8,  2;  S.  C.  2,  1;  Wis.  5,  3;  Wy.  4,  3.  In  some  States 
S.  D.  7,  3  ;  Tenn.  4,  4 ;  Tex.  6,  4 ;  Va.  the  above  rule  applies  only  to  elections 
27 ;  Vt.  2,  8 ;  Amt.  19 ;  Wash.  6,6;  of  the  officers  of  the  executive  (see 
Wy.  6,  11.  §202):    Ala.,    Ark.,    Cal.,    Ga.,    111.; 

»  Ore.  2,  15.  Kan.,  Mo.,  N.  C,  Neb.,  Nev.,  O.,  Tex., 

»  Ala. ;    Ariz.;*    1112;   Ark.  3,  12;  W.  Va.     In  others,  only  to  elections  of 

Cal.  4,  28 ;    Fla. ;    Ga.  3,  10,  1 ;    Ind. ;  the    governor    or    lieutenant-governor 

lo.  3,  38;    Kan.;    Ky. ;    La.;   Mich.  4,  (Cal.,    Ct.,    Del.,    Ind.,    lo.,   Ky.,  La., 

11;    Minn.  4,  30;    Miss.  76;    Mo.  8,  6;  Md.,  Mich.,  N.  J.,  N.  Y..  Pa.,  Tenn., 

N.  C.  2,  9;  N.  D.  54;  Neb.  3,  8;  Nev.;  Va.,   Wis.).     In  others,  only  to  elec- 

N.   Y. ;    O.  2,  27;    Ore.;    Pa.   8,   12;  tions  of  the  Legislature  (Ct.,  Vt.). 


PART   II]  POLITICAL   PROVISIONS  215 

tion  shall  constitute  a  choice,  where  not  otherwise  directed  in  the 
Constitution.' 

When  there  is  no  majority  for  any  person  for  governor,  the  Legis- 
lature in  joint  session  elects  him.  ^  But  only  one  of  the  two  having  the 
highest  votes.'  So,  only,  in  case  of  a  tie.*  So,  when  there  is  none  for 
lieutenant-governor.^  Or  for  the  council."  And  in  the  case  of  State 
senators,  when  no  candidate  has  received  a  majority.^  So,  for  secre- 
tary, treasurer,  or  attorney-general.^  Or  for  treasurer."  For  secre- 
tary of  State  or  comptroller.'"    For  vacancies  in  office,  see  §  201. 

§  233.  Australian  Ballot.  —  Ballots  must  be  uniform,  with  the 
names  of  all  candidates  and  the  offices  to  be  filled  in  due  order,  and 
have  no  distinguishing  mark  or  symbol;  but  any  voter  may  erase 
any  name  and  insert  another."  So  elections  are  by  "secret  official 
ballot"  marked  by  each  voter  in  private.'^  At  all  elections  by  the 
people,  except  primaries  and  municipal  elections  in  small  towns  which 
are  not  held  at  the  same  time  as  a  general  election,  there  must  be  an 
official  ballot  which  may  have  a  separate  device  by  which  the  political 
party  or  the  candidate  may  be  indicated;  and  the  voter  may  vote 
for  such  device  at  the  head  of  the  list  thereby  voting  for  the  entire 
ticket,  or  he  may  vote  for  each  of  the  candidates  in  turn  by  marking 
him  specially  by  his  name.  Ballots  must  be  prepared  in  secrecy  at 
the  polls,  and  the  names  of  independent  candidates  may  be  printed 
with  a  device;  and  names  of  candidates  may  be  WTitten  on  the 
ballot. '^    In  other  States  similar  provisions  are  made  by  statute. 

Cumulative  Voting  exists  by  the  Constitution  of  Illinois  (each 
district  voting  for  three  representatives)  each  voter  may  cast  as 
many  votes  for  each  candidate  as  there  are  State  representatives  to 
be  elected,  or  may  distribute  his  votes,  or  equal  parts  thereof,  among 
the  candidates  as  he  sees  fit.'* 

§  234.  Election  Day,  by  the  Constitutions  of  the  States  (or 
statutes  in  some  States  and  the  Territories)  comes  as  follows:  In 
nearly  all  States,  on  the  first  Tuesday  after  the  first  Monday  in 

>  Cal.  20,   13;  Fla.  16,  8;  Nev.  15,  «  N.  H.  2,  60. 

14;  Ore.  2,  16.  '  Me.  5,  1,  3;  N.  H.  2,  33. 

2  Ga.  5,  1,  5;    5,  2,  1;   N.  H.  2,  41;  «  Ct.,  R.  I. 
Vt.  2,  10;  Amt.  9.    For  Mississippi,  see  »  Ga.,  Vt. 

§  202,  notes.  '«  Ga. 

3  N.  H.,  R.  I.  "  Va.  28. 

*  Ala.;  Ct.  Amt.  30;  Ida.;  Ky. ;  La.;       >=  Ky.  147;  Wy.  5,  11. 
Mon. ;  N.  D. ;  N.  Y. ;  R.  I. ;  S.  C. ;  S.  D. ;       "  La.  212. 

Utah;  Wash.;  W.  Va.  1891,  153;  Wy.         "  111.  4,  7,  and  8. 

*  Ct.,  Vt. 


216  TIIF.    STATE    CONSTITUTIONS  [BOOK    III 

November,  hiennially;  in  tlie  oven  years; '  in  the  odd  years.-  In  a 
few  other  States  it  is  biennially  in  the  even  years  but  on  (lilVerent 
days;  thus,  in  Maine  on  the  second  Monday  in  Septeinl)er ;  '  in 
Oregon  on  the  first  Monday  in  June;^  in  Vermont  on  the  first 
Tuesday  in  September;  ^  in  Arkansas  on  the  first  INIonday  in  Septem- 
ber;" in  (Jeorgia  on  the  first  Wednesday  in  October;  and  in  Colo- 
rado (now  changed  by  statute)  on  the  first  Tuesday  in  October.'' 

In  other  States,  the  election  is  held  annually  on  the  first  Tuesday 
after  the  first  Monday  in  November.^  In  a  few  of  the  southern 
States,  the  elections  and  terms  of  office  have  recently  been  made 
quadrennial;  thus,  in  Louisiana,  every  four  years  on  the  Tuesday 
after  the  third  Monday  in  April  (next  in  1908) ;  *  in  Alabama  and 
Mississippi,  every  four  years  on  the  first  Tuesday  after  the  first 
Monday  in  November  (beginning  in  Mississippi  with  1895  and  in 
Alabama  with  1902);  and  see  also  §  203.^"  But  the  Legislature, 
in  some  States,  may  fix  a  different  day.'^ 

§  235.  Conduct  of  Elections.  —  The  Constitutions  of  many  States 
provide  that  the  right  of  suffrage  shall  be  protected  by  law^s  regu- 
lating elections  and  prohibiting  all  undue  influences  from  power, 
bribery,  tumult,  or  improper  conduct.'-  Or,  that  the  Legislature 
may  enact  laws  concerning  the  judges,  time,  place,  and  manner  of 
elections ;  "  that  the  Legislature  shall  forbid  the  sale  of  intoxicating 
liquors  near  the  polls.'*  The  Legislature  shall  provide  by  law  against 
fraudulent  voting,  etc.'^  In  four  States,  the  election  officers  are  sworn 
not  to  disclose  how  any  person  shall  have  voted,  except  in  judicial 

»  Ariz.*  1129;    Cal.  4,  3;    Ct.  Amt.  «  Ark.  3,  8;  Jan.  23,  1875,  §  1. 

27,  1 ;  Del.  5,  1 ;  Schedule,  7  ;  Fla.  3,  3  ;  '  Col.  5,  2  ;  7,  7  ;  Ga.  3,  4,  2. 

1889,  p.  314  ;  1895,  p.  367  ;  Ida.  Pol.  C*  «  Col.*  1575 ;  Del.  4,  1 ;   Ind.  2,  14 

770;  111.  4,  3  and  5,  3;  lo.  Amt.  1(1882,  Kan.  4,  2;  Ky.  148;  Mass.  Amt.   15 

No.    12);    1904,   p.   207;    Kan.    1905,  Neb.  16,  13 ;   N.J.  4,  1,3;  N.  Y.  3,  9 

543;    Mich.  4,  34;   Minn.  7,   9,   Amt.  Pa.  8,  2 ;  R.  I.  Amt.  11  (1890,  p.  146) 

1883;  Mo.  8,  1;  Mon.*  1150;  N.  C.  2,  Va.*  109.     But  note  that  the  terms  of 

27;   Code,  2668*;   N.  D.  124;   Nev.  4,  office    may    be    biennial;    see    §§  201, 

3;    15,5;   N.  H.  26,  40  ("biennially  in  202. 

November");    N.  M.*  1588;    O.  1904,  »  La.  206. 

p.  640;  Okla.*  2906;  S.  C.  3,  8;  S.  D.  '»  Ala.  46;  Miss.  102,  140,  252. 

7,  4;  Tenn.  2,  7;  Tex.*  1659;   Utah  "  Ala.,  Ga.,  La. 

6,  3;  4,  9;  Wash.  2,  5;   6,  8;   W.  Va.  '^  Ala.  33  and  191;  Cal.  20,  11;  Ct. 

Amt.    1884;    Wis.    13,    1;   Wy.   3,   5;  6,6;   Fla.  3,  26;  Ky.  150;  Nev.  4,  27; 

6,  12  (5).  Ore.  2,  8;   S.  C.  1,  9;   Tex.  16,  2;   Va. 

2  Ky.   30  &  95;   Md.  3,  7;    15,  7 ;  36;   W.  Va.  4,  11;  Wy.  6,  12  (1). 
Miss.  102,  252;  Va.  41,  42.  '^  Md.  3,  49. 

3  Me.  2,  4;   Amt.  23.  '"  Ala.  191;    Ga.  2,  5,  1;    Ky.  154; 
*  Ore.  2,  14.                                             La.  205. 

«  Vt.  2,  8;  Amt.  24,  1.  ''  S.  C.  2,  5. 


I 


PART   II]  POLITICAL   PROVISIONS  217 

proceedings.'  So,  in  one,  a  voter  may  vote  by  sealed  ballot  if  he  so 
choose.-  All  boards,  etc.,  must  be  bi-partisan.^  Election  managers 
shall  require  proof  of  the  payment  of  taxes,  etc.*  All  employers 
must  allow  employees  four  hours  in  which  to  vote,^  between  6  a.  m. 
and  7  p.  m.  No  corporation  organized  or  doing  business  in  this 
State  shall  be  permitted  to  influence  elections  or  official  duty  by 
contributions  of  money  or  anything  of  value." 

§  236.  Registration. — The  Constitutions  of  some  States  have  a 
general  provision  that  there  shall  be  laws  to  preserve  the  purity  of 
elections,  prevent  fraud,  and  guard  against  the  abuse  of  the  elective 
franchise.'  And  in  many,  provision  for  registration  of  voters  is 
especially  made.^  Permanent  lists  are  kept,  and  a  certificate  given 
to  the  voter.  ^  A  person  denied  registration  may  appeal  to  the  courts. '° 
But  in  one,  the  Constitution  expressly  forbids  registration  laws.'' 
And  in  one,  no  elector  shall  be  deprived  of  his  vote  by  reason  of  his 
name  not  being  registered.'-  And  in  one,  the  Legislature  shall  estab- 
lish no  board  or  court  of  registration  of  voters.'^  Registration  must 
be  four  months  before  the  election;  '*  so,  ten  days.'^ 

§  237.  Freedom  from  Arrest.  —  In  most  States,  the  Constitution 
provides  that  electors  shall  be  free  from  arrest  while  attending, 
going  to,  or  returning  from  the  polls,  except  for  treason,  felony,  or 
breach  of  the  peace.'"  So,  in  some,  on  any  civil  process. '^  They  are 
not  liable  to  arrest  on  civil  process  during  election  day.'^  Nor  are 
they  required  to  attend  court  on  that  day,  either  as  party  or  witness.'* 


'  Ark.  3,  3;    Col.  7.  8;    Mo.  8,  3;  registration  in  cities  and  towns);   Wy. 

Pa.  8.  4.  6,  12. 

-  W.  Va.  4,  2.     See  §  231.  »  S.  C. 

»  N.  Y.  2,  6.  »"  La.  201 ;  S.  C.  2,  5. 

*  S.  C.  2,  4.     See  §  244.  "  Ark.  3,  2. 

«  Ky.  148.  1=  W.  Va.  4,  12. 

«  Okla.  9,  40.  "  W.  Va.  6,  43. 

^  Col.  7,  11;    Fla.  6,  9;    Kan.  5,  4,  "  Miss.  251. 

Ky.  150;  Md.  3,  42;  Mich.  7,  6;   Mon.  "^  N.  Y. 

9,  9;   Nev.  2,  6;   N.  Y.  2,  4  ;   Okla.  3,  >«  Ala.  191;    Ariz.*  Bill  of  Rts.  24; 

6;  Pa.  1901,  p.  881;   R.  I.  2,  6;  Tenn.  Ark.  3,  4;  Cal.  2,  2;   Col.  7,  5;   Del.  5, 

4,  1;  Tex.  6,  4;   W.  Va.  4,  11.  5;    Ga.  2,  3,  1 ;    111.  7,  3;    Ind.  2,  12; 

«  Ala.   186;    Del.  5.  4;    Fla.  6,  2;  lo.  2,  2;   Kan.  5,  7 ;  Ky.  149;  La.  204 ; 

Ga.  2,  2,  1   (such    provision    may    be  Me.  2,  2;    Mich.  7,  3;    Miss.  102;    Mo. 

made  by  the  Legislature) ;  Ind.  2,  2  and  8,  4  ;  Mon.  9,4;  N.  D.  123  ;  Neb.  7,  5 ; 

14;   Ky.  147;   La.  197,  214;  Md.  1,  5;  O.  5,  3;  Okla.  3,  7;   Ore.  2,  13;   Pa.  8, 

Mo.  8,  5;    N.  C.  6,  3;    Amt.  1900,  2;  5;   S.  C.  2,  14;   S.  D.  7,  5;  Tenn.  4,  3; 

Nov.;  N.  Y.;  Okla.  3,  6;  R.  LAmt.  7;  Tex.  6,  5;    Utah    4,   3;    Wash.  6.  5; 

Pa.  1901,  p.  881;  S.  C.  2,  4  &  8;  Va.  Wy.  6,  3. 

18,  19,  20,  25;   Wash.  6,  7;   Wis.  3,  1;  "  Ct.  6,  8;  Va.  29;  W.  Va.  4,  3. 

Amt.  Cthe  Legislature  must  provide  for  '*  Minn.  7,  5 ;  Nev.  2,  4. 

"  Mich.,  Va.,  W.  Va. 


218 


THE   STATE   CONSTITUTIONS 


[book   III 


And  tlicy  are  not  oblifj^cd  to  perform  military  duty  on  election  day, 
except  in  time  of  war  or  public  danger.' 

§  238.  Contested  Elections  are,  by  the  Constitutions  of  many 
States,  to  be  tried  in  a  manner  to  be  provitled  by  law.-  In  many 
others,  they  are  to  be  tried  by  the  Legislature  in  joint  session.-'  So, 
in  several  others,  by  the  Legislature  in  the  manner  of  law  provided.* 
In  two  States,  by  a  committee  of  both  houses."^  In  one,  by  the  house 
alone."  In  others,  by  the  courts  of  law.^  But  in  most  of  the  States, 
the  elections  of  members  of  each  house  of  the  Legislature  are  to  be 
determined  by  such  house.*  In  the  trial  of  contested  elections, 
and  proceedings  for  investigating  them,  no  person  can  refuse  to 
testify  on  the  ground  that  it  will  criminate  him;  but  such  testi- 
mony shall  not  afterwards  be  used  against  him  except  in  pro- 
ceedings for  perjury.^ 


Article  24.    The  Right  of  Suffrage 


§  240.     Citizens.^^  —  The  right  of  suffrage  (subject  to  the  other 
conditions  in  this  article)  is,  by  the  Constitutions  (or  statutes)  of  all 


»  Cal.  2,  3;  111.;  lo.  2,  .3;  Me.  2,  3; 
Mich.  7,  4  ;  Mon.  9,5;  N.  D. ;  Neb. ; 
Ore. ;  S.  D. ;  Utah  4,  4 ;  Va. ;  Wash. ; 
W.  Va. ;  Wy.  8,  4. 

2  Ark.  19,  24 ;  Col.  7,  12 ;  Ct.  4,  2 ; 
Ida.  4,  2 ;  lo.  3,  7 ;  Ky.  38 ;  La.  209  ; 
Mon.  7,  2;   N.  J.  5,  2;   O.  2,  21;   Tex. 

3,  8;   W.  Va.  4,  11;   Wash.  3,  4. 

*  Ark.  6,  4 ;  Col.  4,  3  ;  Mass.  2,  2,  1, 
3 ;  Me.  5,  1,  3  ;  Mo.  5,  25 ;  N.  C.  3,  3  ; 
N.  H.  2,  41 ;  R.  I.  8,  7  ;  Tex.  4,  3 ;  Va. 

4,  2;   Vt.  Amt.  9;    W.  Va.  7,  3.     See 
also  §  270. 

*  Ala.  115;  Ga.  5,  1,  6;  III. 
Ind.  5,  6;  lo.  4,  5;  Ky.  90; 
Neb.  5,  4  ;  Ore.  5,  6 ;  Tenn.  3,  2. 

'  Del.  3,  4;  Pa.  4,  2. 

«  Md.  2,  4. 

^  Ariz.*    1384;   Mo.   8,  9;    N 
1874,  29  ;  Pa.  8,  17 ;  Wy.  6.  2. 

«  N.  H.  2,  21  and  34;  N.  M.*  63, 
59.  For  other  States,  see  §  270.  In 
some  States  the  above  provision  applies 
to  the  contested  elections  of  the  gov- 
ernor or  other  executive  officers  only 
(Ala.,  Ark.,  Col,  Ct.,  Del.,  III.,  Mass., 
Me.,  N.  C,  Nev.,  N.  H.,  N.  J.,  R.  I., 
Tex.,  Vt.).     In  others,  for  members  of 


5,  4; 
Mo. ; 


M.* 


the  Legislature  only  (lo.,  Ky.,  Pa.). 
In  others,  for  the  governor  or  lieuten- 
ant-governor only  (Del.,  Ind.,  lo.,  Ky., 
Md.,  Miss.,  Mo.,  Ore.,  Tenn.,  Tex.,  Va., 
W.  Va.).  But  in  some  States  these 
provisions  do  not  apply  to  contested 
elections  for  the  governor  (Mo.,  Pa.), 
or  it  only  applies  to  elections  of  ex- 
ecutive officers  other  than  governor, 
&c.  (Mo.). 

»  Ark.  3,  9;  Col.  7,  9;  La.  216;  Pa. 
8,  10. 

'"  In  order  to  give  a  complete  pres- 
entation of  the  subject  in  this  article, 
the  statute  provisions  of  a  few  States 
which  have  no  constitutional  provi- 
sions on  the  subject  are  also  incor- 
porated. In  England  all  free  men  voted 
until  1429.  The  right  to  vote  even  for 
presidential  electors  and  members  of  the 
House  is  determined  by  the  laws  of  the 
States,  save  only  that  any  one  who  can 
vote  for  the  lower  House  of  the  State 
Legislature  must  be  allowed  to  vote 
for  members  of  Congress  (U.  S.  C.  1,  2, 
1);  therefore  it  will  of  course  vary  in 
the  different  States  of  the  Union.  But 
by    the    Fourteenth   Amendment   any 


PART   II] 


POLITICAL   PROVISIONS 


219 


the  States,  given  to  every  male  (or  female,  see  below)  citizen  of  the 
United  States  aged  twenty-one.'  But  he  must  also  be  a  citizen  of 
the  State.^  So,  of  any  person  naturalized ;  but  he  must  have  been  a 
United  States  citizen  ninety  days  before  the  election,^  or  one  month 
before.''  And  in  many  States,  also  to  every  male  of  foreign  birth, 
aged  twenty-one,  who  has  declared  his  intention  to  become  a  citizen 
according  to  the  United  States  naturahzation  laws,*  at  least  thirty 
days  before  the  election ;  ^  at  least  one  year,  and  not  more  than  five 
years,  before ;  ^  at  least  four  months  before ;  ^  or  one  year,  and  not 
more  than   six,  respectively.* 

In  other  States,  to  every  male  citizen  or  inhabitant  o^  the  State 
aged  twenty-one.'"  He  must  have  been  a  citizen  ninety  days."  Since 
the  Fourteenth  Amendment  this  provision  is  of  course  neutralized ; 
See  note  10. 

Indians,  aged  twenty-one,  if  civilized,  and  not  a  member  of  any 
tribe,  can  vote.'^    So,  in  Michigan,  if  born  in  the  United  States.     In 


person  naturalized  in  the  United  States 
becomes  a  citizen  both  of  the  United 
States  and  of  the  State  wherein  he 
resides ;  therefore  the  State  may  not 
withhold  the  right  to  vote  except  as 
it  may  be  withheld  from  other  citizens 
in  the  State ;  and  never  by  reason  of 
race,  color,  or  previous  condition  of 
servitude  (U.  S.  C.  Amts.  14,  1  ;  15,  1). 
It  would  seem,  however,  that  foreigners 
newly  naturalized  may  be  subjected  to 
the  same  term  of  residence  in  the  State 
before  being  allowed  to  vote  as  are  re- 
quired of  citizens  coming  from  other 
States.  All  limitations  of  the  riglit  of 
suffrage  are  indirectly  forbidden  by  the 
Federal  Constitution  (Amt.  14,  2). 
That  is  to  say,  the  representation  of 
the  State  in  Congress  is  reduced  in  pro- 
portion to  the  number  of  male  inhabi- 
tants whose  right  of  suffrage  is  denied 
or  abridged  except  for  participation  in 
rebellion  or  for  other  crime.  The  edu- 
cational tests,  therefore,  imposed  es- 
pecially by  the  newer  Constitutions, 
would  seem  to  be  ground  of  diminish- 
ing the  representation  in  Congress  of 
the  States  adopting  them  ;  but  this  has 
not  yet  been  done.  The  right  of  suf- 
frage is  not,  however,  a  natural  right, 
but  one  of  political  expediency ;  hence 
women,  although  citizens,  do  not  neces- 
sarily vote. 


'  Ala.  177 ;  Ariz.*  1347 ;  Ark.  3,  1 ; 
1891,  p.  314;  Cal.  2,  1;  1893,  p.  543; 
Col.  7,  1 ;  Ct.  Amt.  8 ;  D.  C*  98 ;  Fla. 
6,  1;  Ga.  2,  1,  2;  Ida.  6,  2;  111.  7,  1; 
Ind.  2,  2 ;  lo.  2,  1 ;  Kan.  5,  1 ;  Ky. 
145;  La.  197;  Md.  1,  1;  Me.  2,  1 ; 
Mich.  Amt.  1893,  p.  438;  Minn.  7,  1; 
Amt.  1895,  3;  Miss.  241;  Mo.  8,  2; 
Mon.  9,  2;  N.  C.  6,  1 ;  N.  D.  12l"; 
Neb.  7,  1 ;  Nev.  2,  1 ;  N.  J.  2, 1 ;  N.  M.* 
1868,  26,  2 ;  O.  5,  1 ;  Okla.  3,  1 ;  Ore. 
2,  2;  R.  I.  2,  1;  Amt.  7;  S.  C.  2,  3; 
S.  D.  7,  1 ;  Tenn.  4,  1 ;  Territories,  U.  S. 
R.  S.  1859,  1860;  Tex.  6,  2;  Utah  4, 
2  &  5 ;  Va.  18 ;  Wash.  6,  1 ;  Wis.  3, 
1 ;  Amt. ;   Wy.  6,  2  &  5. 

^  La.,  S.  C. 

'  Cal.,  Utah. 

*  Pa.  8,  1. 

«  Ariz.*  1412;  Ark.;  Ind.;  Kan.; 
Mo. ;   Ore. ;   S.  D. ;  Terr. ;  Tex. ;  Wis. 

«  Neb. 

'  Mo. 

»  Col. 

»  N.  D. 

'"  Del.  5,  2;  Mass.  2,  1,  2,  2;  Amt.  3  ; 
Mich.  7,  1 ;  N.  H.  2,  12  &  27 ;  N.  Y.  2, 
1;  Okla.;  Pa.  8,  1;  Vt.*62;  W.Va. 
4,  1. 

"  N.  Y. 

•-  Ida.,  Wis.,  Minn.  In  other  States, 
it  would  follow  from  §§  240  or  21,  22, 
that  all  Indians  not  on  a  reservation 


220  THE    STATE    CONSTITUTIONS  [bOOK    III 

Oklahoma,  all  Indians  vote  like  whites;  in  North  Dakota,  civilized 
Indians  who  have  two  years  severed  their  tribal  relation.  So, 
in  Wisconsin,  persons  of  Indian  blood  who  have  once  been  de- 
clared by  Congress  citizens  of  the  United  States,  any  subsequent 
act  of  Congress  to  the  contrary  notwithstanding.  So,  in  Minnesota, 
persons  of  mixed  white  and  Indian  blood  who  have  adopted  the 
customs  and  habits  of  civilization ;  and  Indians  also,  after  an  ex- 
amination by  the  courts.  But  in  several  no  Indian  not  taxed  can 
vote.^     And  in  one,  no  Narragansett  can  vote.^ 

The  Constitutions  of  a  few  States  still  restrict  the  right  of  suffrage 
to  white  persons  (see  §  22);  but  this  is  void  under  the  Fifteenth 
Amendment.  Mongolians  may  not  vote,  if  not  born  in  the  United 
States.^  In  four  States,  women  vote  in  all  respects  like  men.* 
(See  also  §§  22,  23.)  By  the  Constitution  of  others,  the  Legislature 
may  at  any  time  extend  the  right  of  suffrage  without  regard  to  sex 
to  persons  not  here  enumerated;^  but  the  law  must  be  approved 
by  a  majority  of  the  voters  at  a  general  election.^ 

"The  Legislature  shall  at  its  first  session  after  the  admission  of 
the  State  into  the  Union  submit  to  a  vote  of  the  electors  of  the  State 
the  following  question  to  be  voted  upon  at  the  next  general  elec- 
tion held  thereafter,  namely:  'Shall  the  word  "male"  be  stricken 
from  the  article  of  the  Constitution  relating  to  elections  and  the  right 
of  suffrage?'  If  a  majority  of  the  votes  cast  upon  that  question  are 
in  favor  of  striking  out  said  word  '  male,'  it  shall  be  stricken  out  and 
there  shall  thereafter  be  no  distinction  between  males  and  females 
in  the  exercise  of  the  right  of  suffrage  at  any  election  in  this  State."^ 

§  24L  Residence  Qualijications.  —  By  the  Constitutions  of  a  few 
States,  a  voter  must  have  been  resident  a  certain  period  of  time  in 
the  United  States.^  And  by  the  Constitutions  of  nearly  all,  to  vote 
at  a  State  election,  a  person  qualified  according  to  §  240  must  have 

are  citizens,  there  being  no  provision  The  above  question  was  submitted 

to  the  contrary.  to  the  people  at  the  election  held   in 

'  Ida. ;  Me.  2,  1 ;  Miss.  241 ;  Wash.  November,  1890,  and  was  rejected  in 

6,  1.  both,  in  South  Dakota  by  the  following 

2  R.  I.  2,  4.  vote :  for,  22,072  ;  against,  45,682. 

*  Ida.  *  Ninety    days    (Cal.).      One    year 
Mda.  Amt. ;   Col.  7,  1 ;    Utah  2,  6;  (Ind.  2,  2;   Minn.  7,  1 ;  S.  D.  7,  1).    He 

4,  1 ;   Wy.  6,  2.  must  have  been  a  citizen  one  month 

*  N.  D.  122  (perhaps  repealed  by  (Pa.  8,  1).  In  one,  he  must  he  horn  in 
Amt.  2);  Col.  7,  2  (adopted).  the  United  States,  unless  he  holds  a 

'  Wis.  certain  amount  of    real  estate  in  the 

'  S.  D.  7,  2.    And  so,  substantially,    State  (see  §  244;   R.  I.  2,  1  &  2), 
in  Washington  (27,  17). 


PART    II] 


POLITICAL   PROVISIONS 


221 


been  resident  for  a  certain  period  immediately  preceding  the  election 
in  the  State/  In  England  no  residence  qualification  existed  until 
Henry  V.,  and  it  was  repealed  under  Geo.  III. 

In  one  State,  residence  on  State  land  ceded  to  the  United  States 
is  not  sufficient  (compare  §  243).^  Ministers  and  teachers  are 
qualilied  after  six  months'  residence.^  And  by  the  Constitutions  of  a 
few  States,  a  person  otherwise  qualified  must,  in  order  to  vote  at  any 
election,  have  been  resident  in  the  county  or  legislative  district  for  a 
certain  period  of  time  before,*  or  in  the  city  or  township.^  So  he 
must  be  registered  in  the  town  by  June  30  preceding.® 

§  242.  Losing  a  Residence,  etc.  —  By  the  Constitutions  of  many 
States,  no  person  shall  be  deemed  to  have  lost  a  residence  for  the 
purpose  of  voting,^  by  reason  of  his  absence  from  the  State  while 
employed  in  the  service  of  the  United  States,^  or  of  the  State. ^  Or, 
while  engaged  in  the  navigation  of  the  waters  of  this  State  or  of  the 
United  States,^"  or  temporarily  absent  from  the  State.''    Or,  while 


'  Three  months  (Me.  2,  1).  Four 
months  (Minn.).  Six  months  (Ark.  8, 
2;  Col.  7,  1;  Ida.  6,  1;  Ind.  2,  2;  lo. 
2,  1 ;    Kan.  5,  1 ;    Mich. ;    Minn. ;    Neb. 

7,  1 ;  Nev.  2,  1 ;  N.  H.*  31,  8 ;  N.  M.*  ; 
Ore.  2,  2 ;  S.  D.).  One  year  (Ark.  3, 
1;  Cal.  2,  1;  Col.  1901,  47;  Ct.  Amt. 
8 ;  D.  C*  98  (in  the  District) ;  Del.  5, 
2;  Fla.  6,  1;  Ga.  2,  1,2;  111.7,1;  Ky. 
145;  Mass.  Amt.  3;  Md.  1,  1 ;  Miss. 
241;  Mo.  8,  2;  Mon. ;  N.  D. ;  N.  J. 
2,  1 ;   N.  Y. ;   O.  5,  1 ;   Okla.  3,  1 ;   Pa. 

8,  1;  Tenn.  4,  1;  Tex.  6,  2;  Utah; 
Vt.*  61 ;  Wash. ;  W.  Va.  4,  1 ;  Wis.  3, 
1;  Wy.).  For  two  years  (Ala.  178; 
La.;  N.  C.  1900,  2;  R.  I.  Amt.  7; 
S.  C.  2,  4 ;  Va.  18).  Two  and  a  half 
years  (Mich.). 

2  R.  I.  2,  5. 

"  S.  C. 

*  Ten  days  (Ark.,  Minn.).  Thirty 
days  (Dc!.,  Ida.,  Nev.,  O.*  2945,  S. 
D.).  Sixty  days  (lo.,  Mo.,  W.  Va., 
Wy.).  Three  months  (Cal.,  Del.,  111., 
N.  C,  Va.,  Wash.).  Four  months  (N. 
Y.,  Utah).  Five  months  (N.  J.).  Six 
months  (Ark.,  Fla.,  Ga.,  Ky.,  Md.,  N. 
C,  N.  D.,  Okla.,  Tenn.,  Tex.).  One 
year  (La.,  Miss.,  S.  C,  Va.).  "As  by 
law  provided"  (Col.,  Mon.,  Neb.,  O.). 

^  Sixty  days  (Ind.,  Mo.,  Pa.).  Six 
months  (Ct.,  La.,  Mass.,  Md.,  N.  H., 
R.  I.).  Thirty  days  (Cal.,  Kan., 
Minn.).     One  year  (Ala.,  S.  D.,  Va.). 


In  the  ward  or  precinct  or  election  dis- 
trict, ten  days  (Mich.,  Minn.).  Twenty 
days  (Mich.,  O.).  Thirty  days  (Ark., 
Cal.,  D.  C*  Del.,  111.,  Ind.,  Nev., 
N.  Y.,  Okla.,  Va.,  Wash.,  Wis.).  Si.xty 
days  (Ky. ;  Pa.  8,  1 ;  Utah.)  Three 
months  (Ala.,  Md.,  Me.).  Four  months 
(N.  C,  S.  C).  And  he  does  not  lose  his 
residence  in  the  old  district  for  a  cor- 
responding period  (Va.). 

«  R.  I.  Amt.  11   (1900,  p.  149). 

'  Or  for  the  purpose  of  holding  office 
(Col.,  Ky.,  Tex.).  Or  for  any  purpose 
whatever  (Ark.,  Cal.,  Ind.,  Wis.). 

»  Ariz.*  1693 ;  Ark.  19,  7 ;  Cal.  2, 
4;  20,  12;  Col.  7,  4;  Ida.  6,  5;  111.  7, 
4;  Ind.  2,  4;  Kan.  5,  3;  Me.  2,  1; 
Mich.  7,  5 ;  Minn.  7,  3  ;  Mo.  8,  7  ;  Mon. 
9,3;  N.  D.  125;  Nev.  2,  2;  N.  Y.  2,  3  ; 
Ore.  2,  4  ;  Pa.  8,  13  ;  S.  C.  2,  7  ;  S.  D.  7, 
6  ;  Tex.  16,  9  ;  Wash.  6,  4  ;  Wis.3,4  ;  Wy. 
6,  7.  These  exceptions  do  not  apply 
to  a  person  serving  ovit  a  sentence 
in  the  penitentiary  for  infamous  crime. 

8  Ark.,  Cal.,  Col.,  Ida.,  111.,  Ind., 
Ky.,  Me.,  Mich.,  Mo.,  Mon.,  N.  D.,  Ore., 
Pa.,  S.  D.,  Tex.,  Wash.,  Wis. 

'"  Ariz.,*  Cal.,  Ida.,  Kan.,  La.,  Mich., 
Minn.,  Mo.,  Mon.,  Nev.,  N.  Y.,  Ore., 
Pa.,  S.  C,  Wash.  Or.  in  all  these  last 
except  Idaho  and  Minnesota,  of  the 
waters  of  the  high  seas. 

'^  Ala.  1,  31;  Ariz.*;  Ark.;  S.  C. 
1,  12. 


222  THE   STATE   CONSTITUTIONS  [BOOK   III 

confined  in  prison,'  or  kept  at  an  almshouse  or  asylum  at  the  public 
expense.^  Or  while  a  student  in  any  institution  of  learning.^  And 
in  several  States  no  person  shall  he  deemed  to  have  gained  a 
residence  in  the  State  by  reason  of  his  presence,  for  the  various 
reasons  respectively  specified,* 

§  243.  Army  and  Navy.  —  And  in  most  States  it  is  specially 
provided  that  no  person  shall  be  deemed  to  have  acquired  a  residence 
for  the  purpose  of  voting  by  reason  of  being  stationed  in  the  State 
while  in  the  military  or  naval  service  of  the  United  States.^  And  the 
same  law  would  seem  to  be  implied  (by  §  242)  in  a  few  other  States. 

In  several,  no  person  in  the  regular  army  or  navy  of  the  United 
States  can  vote  (see  also  below).®  But  those  who  were  soldiers  and 
sailors  in  the  Civil  War,  if  United  States  citizens,  have  a  special  right 
to  vote.^  And  conversely,  no  person  in  the  actual  military  or  naval 
service  of  the  United  States  is  deemed  to  have  lost  his  right  to  vote 
by  reason  of  his  absence  (in  time  of  war,  except  in  Nevada);  ^  but  a 
manner  in  which  he  may  vote  is  to  be  provided  by  the  Legislature.^ 
But  in  three,  only  when  such  person  is  not  in  the  regular  army  or 
navy.  ^^ 

§  244.  Property  Qualification.  —  In  nine  States  there  is  an 
express  constitutional  provision  that  there  shall  be  no  property 
qualification  for  the  right  of  suffrage.'*  Except  school  elections;  '- 
elections  creating  indebtedness.'^  But  in  one,  the  Constitution 
dsclares  that  every  free  man  has  a  right  to  vote  "who  has  a  sufficient 

1  Ariz.*    Cal.,    Col.,    Kan.,    Mich.,  »  Kan.  5,  3 ;   Mo.  8,  11;   Ore.;  Tex. 

Minn.,  Mo.,  Nev.,  N.  Y.,  Ore.,  Pa.  6,  1. 

-  Ariz.,*  Cal.,  Col.,  Ida.,  Kan.,  La.,  '  R.  I.  Amt.  6. 

Mich.,  Minn.,  Mo.,  Mon.,  Nev.,  N.  Y.,  »  Ariz.*  1407;    Ct.  Amt.  13;    Kan. 

Ore.,  Pa.,  Va.,  Wash.  5,  3;    La.  208;    Me.  2,  4;    Mich.  7,  1; 

3  Ariz.*  ;   Cal. ;  Col. ;    Ida. ;     Kan. ;  Neb.  7,  3  ;  Nev.  2,3;  N.  J.  2,  1 ;  N.  Y. 

La. ;  Mich. ;  Minn. ;  Mo. ;  Mon. ;  Nev. ;  2,  1 ;    Okla. ;    Pa.  8,6;    R.  I.  Amt.  4  ; 

N.    Y.;    Ore.;    Pa.;    S.    C. ;    Va.  24;  S.  D.  6,  19;   Utah  1,17;  Wash.;   Wy. 

Wash.  6,  7. 

*  Ariz.,*  Cal.,  Col.,  Ida.,  Kan.,  La.,  "  This  last  clause  is  not  added  in  a 

Mich.,  Mo.,  Mon.,  Nev.,  N.  Y.,  Ore.,  few  States  (Wash.,  Wy.). 

Pa.,  S.  C,  Wash.     So,  in  Maine,  as  to  "  Ct.,  Kan.,  Neb. 

paupers  or  asylum  inmates  only.  "  Ark.  1,  21 ;   Cal.  1,  24;   Ida.  1,  20; 

«  Ark.  3,  7  ;    Del.  5,  2  ;   Ga.  2,  1,  2;  Kan.  Bill  of  Rts.  7  ;  Minn.  1,  17  ;  N.  C. 

111.7,5;   Ind.  2,  3;   lo.  2,  4 ;   Ky.  146;  1,  22;  S.  C.  1,  11 ;  Utah  1,  4 ;  4,  7.     In 

La.  175 ;   Me.  2,  1 ;   Mich.  7,  7 ;   Minn.  States  where  there  is  no  express  quali- 

7,  4 ;  Mon.  9.  6 ;  N.  D.  126 ;  Neb.  7,  4 ;  fication,  the  same  would  result  from 

N.  J.  2,  1 ;  O.  5,  5;  Okla.  3,  2;   Ore.  2,  §    240     (except    as    the    Constitution 

5 ;    R.  I.  2,  4 ;   S.  D.  7,  7 ;   Territories,  provides). 

U.  S.  R.  S.  1860 ;   Va.  24  ;   Wash.  6,  4 ;  '-  Ida. 

W.  Va.  4,  1;    Wis.  3,  5;    Wy.  6,  8.  '^  Ida.,  Utah. 


PART   II]  POLITICAL    PROVISIONS  223 

interest  in  the  community."  '  In  Virginia,  the  Legislature  may  pro- 
vide a  property  quaHfication  not  exceeding  $250  in  town  or  county 
elections  except  for  members  of  the  Legislature.^  And  in  several, 
there  is  a  provision  requiring  a  voter  to  have  paid  certain  taxes.^ 
See  also  §§  245,  24G. 

And  in  municipal  elections,  in  two  States,  to  determine  the  expen- 
diture of  money  or  the  assumption  of  debt,  no  person  can  vote 
who  does  not  pay  a  property  tax  in  such  municipality.* 

And  in  one,  no  person  can  vote  in  city  council  or  tax  or  money 
elections  unless  he  have  paid  a  property  tax  on  property  in  such 
town  or  city  to  the  net  value  of  $134.28.^ 

Exceptions.  —  No  person  who  served  in  the  army  or  navy,  U.  S.  A. 
or  C.  S.  A.,  is  required  to  have  paid  such  poll  tax  above  required." 

§  245.  Educational  Qualifications  of  the  right  of  suffrage  exist 
in  several  States.  Thus,  no  person  can  vote  who  cannot  read  the 
Constitution  and  Statutes  of  the  State.  ^  No  person  who  cannot 
read  the  Constitution  of  the  State  in  English.^  No  person  who  can- 
not wi'ite  his  name;  ^  or,  in  New  Hampshire  "write";  in  Virginia, 
he  must  write  his  application.^"  Who  cannot  read  and  speak 
English.^ ^  Who  cannot  read  and  wiite  any  section  of  the  State 
Constitution.*^     Physical  disability  is  always  an  excuse.'^ 

Except  persons  who  now  (1904)  have  the  right  to  vote,  or  who 
were  sixty  years  old  January  1,  1904;  "  or  who  were  twenty  or  be- 
came United  States  citizens  before  January  1,  1900,'^  or  were  voters, 
or  over  the  age  of  sixty  in  1893.'^ 

»  Vt.  1,  8.  *  Ida.  1,  20;  Tex.  6,  3.  (Such  a  tax 

^  Va.  30.  may  be  required  also  in  scliool  elec- 

^  Thus,  all  taxes  except  for  the  year  tions.     See  §§363,  372.) 

of  the  election  (Ga.  2,  1,  2).    He  must  ^  R.  I.  Amt.  7. 

have  paid  a  State,  county,  or  city  tax  *  Va.  22. 

within  two  years  previous  to  the  elec-  ^  Ct.  Amt.  11 ;  Wy.  6,  9. 

tion  (Pa.  8,  1).    He  must  have  paid  all  «  Cal.  1893,  p.  543  ;   Del.  5,  2  ;  Mass. 

poll  taxes  assessed  upon  him  for  the  Amt.  20;    Me.   1891,  res.   109;    Miss. 

year  previous  (N.  C.  5,  1) ;  for  a  period  244;   N.  H.  1,  11. 

of  two  years  preceding  (Miss.  241;    R.  ^  Cal.,  Del.,  Mass.,  Me. 

I.  2,  3);    three  years  (Va.  20,  21);    to  '"  Va.  20. 

be  prescribed  by  the  Legislature  (Fla.  "  Wash.  C.  Amt.  1896. 

6,  8;   Tenn.  4,  1;   Tex.  1901,  p.  322).  "  N.  C.  1900,  2;   S.  C.  2,  4 ;    (unless 

He  must  have  paid  all  poll  taxes  due  he  have  paid  taxes  on  $300). 

six  months  before  the  election  (S.  C.  2,  '^  c^i^  Mass.,  Me.,  Del.,  N.  H.,  Wy. 

4).    No  person  can  vote  who  is  excused  "  N.  H. 

from  paying  taxes  at  his  own  request  '^  Del. 

(N.H.  2,  28).    He  must  have  paid  a  tax  '»  Me. 

to  the  amount  of  SI,  unless  he  owns  real 

estate  in  the  State  (R.  I.  2,  1  &  2). 


224  THE   STATE    CONSTITUTIONS  [dOOK   III 

Every  inliahitant  of  the  Stiite  possessing  tlie  qualifications  required 
by  the  Constitution  has  an  equal  right  to  vote.' 

In  Colorado,  the  Legislature  were  authorized  to  exact  an  educa- 
tional qualification  after  1890.^ 

§  246.  Southern  State  Provisions.  —  In  Alabama  after  January  1, 
1903,  only  those  persons  can  register  who  can  either  (1)  read  and 
write  any  article  of  the  Constitution  of  the  United  States  in  English, 
and  who  are  physically  unable  to  work  or  who  have  worked  or  been 
regularly  engaged  in  some  lawful  employment,  business,  occupation, 
trade,  or  calling  for  the  greater  part  of  the  twelve  months  next  pre- 
ceding; or  else  (2)  the  owner  in  good  faith  in  his  own  right,  or  the 
husband  of  such  owner,  of  forty  acres  of  land  upon  which  they  reside, 
or  of  real  estate  or  personal  property  assessed  to  the  value  of  $300, 
provided  the  taxes  have  been  paid.^ 

In  Louisiana  an  applicant  for  registration  must  be  able  to  read 
and  write  and  shall  make  his  own  written  application  in  English  or 
in  his  mother  tongue,  which  application  contains  the  essential  facts 
and  must  be  entirely  written,  dated,  and  signed  by  him  in  the  pres- 
ence of  the  registration  officer  without  assistance  or  suggestion  from 
any  person,  or  any  memorandum  whatever,  except  the  form  of  appli- 
cation, provided  that  if  unable  to  write  in  English  he  may  write  the 
same  in  his  mother  tongue  from  the  dictation  of  an  interpreter,  or  if 
unable  to  write  by  reason  of  physical  disability,  the  same  shall  be 
written  at  his  dictation  by  the  registration  officer. 

If  he  be  not  able  to  read  or  write  he  may  nevertheless  be  entitled 
to  be  registered  if,  at  the  time  he  offers  to  register,  he  be  the  bona 
fide  owner  of  property  assessed  him  in  the  State  at  a  valuation  of  not 
less  than  $300  on  which  all  taxes  shall  have  been  paid,  if  the  property 
be  personal ;  but  he  must  make  oath  that  he  is  a  citizen  of  the  United 
States  and  of  the  State,  over  the  age  of  twenty-one,  that  he  possesses 
the  qualifications  as  to  residence  prescribed  in  the  general  laws,  and 
that  he  is  the  owner  of  property  assessed  at  such  valuation.* 

"Grandfather  Clause."  —  This  principle  recently  adopted  in  State 
Constitutions,  mainly  in  Southern  States,  but  also  in  some  Northern 
States,  operates  as  an  exception  to  the  property  and  educational 
qualifications.  Thus,  in  New  Hampshire,  all  persons  who  had  the 
right  to  vote  at  the  time  of  the  adoption  of  the  new  Constitution, 
1903,  or  were  sixty  years  old  January  1,  1904.    So  in  Delaware  the 

>  S.  C.  1,  10.  ^  Ala.  181,  180. 

'^  Col.  7,  3.  *  La.  197   (3)  &   (4). 


PART   II]  POLITICAL  PROVISIONS  225 

educational  qualification  only  applies  to  persons  who  become  twenty- 
one  years  old  or  are  naturalized  as  United  States  citizens  after  Janu- 
ary 1,  1900.  In  Virginia  there  was  a  general  registration  in  1902 
and  1903,  at  which  all  male  citizens  of  the  United  States  having 
proper  qualifications  of  age  and  residence  could  register  if  they  were 
either,  first,  a  person  who,  prior  to  the  adoption  of  this  Constitution, 
served  in  time  of  war  in  the  Army  or  Navy  of  the  United  States  or  of 
the  Confederate  States  or  of  any  State  of  the  United  States  or  of  the 
Confederate  States;  or,  second,  a  son  of  any  such  person;  or  third, 
a  person  who  owns  property  upon  which,  for  the  year  next  preceding 
that  in  which  he  offers  to  register.  State  taxes  aggregating  at  least 
one  dollar  have  been  paid ;  or,  fourth,  a  person  able  to  read  any  sec- 
tion of  the  State  Constitution  and  give  a  reasonable  explanation  of 
the  same,  or,  if  unable  to  read  such  section,  able  to  understand  and 
give  a  reasonable  explanation  thereof  when  read  to  him  by  the 
officers.  A  roll  containing  the  names  of  all  persons  thus  registered 
w'as  to  be  preserved,  and  persons  so  enrolled  need  not  register  again. ^ 
In  South  Carolina,  up  to  January  1,  1898,  persons  were  allowed  to 
register  permanently  who  could  read  or  understand  the  State  Con- 
stitution when  read  to  them.^  In  Alabama,  up  to  December  20, 
1902,  persons  who  served  in  the  U.  S.  or  C.  S.  army  or  navy  in  the 
Mexican,  Indian,  Civil,  or  Spanish  wars;  the  lawful  descendants 
of  such;  and  "all  persons  of  good  character  who  understand  the 
duties  and  obligations  of  citizenship  under  a  republican  form  of 
government."  ^ 

In  North  Carolina  no  male  person  who  was,  on  January  1, 
1867,  or  prior  thereto,  entitled  to  vote  under  the  laws  of  any  State 
in  the  United  States  wherein  he  then  resided,  and  no  lineal  de- 
scendant of  any  such  person  shall  be  denied  the  right  to  register 
and  vote  by  reason  of  his  failure  to  possess  these  educational  quali- 
fications, provided  he  have  registered  prior  to  December  1,  1908; 
and  the  Legislature  are  to  provide  for  the  registration  of  all 
persons  entitled  to  vote  without  such  educational  qualifications 
and  make  a  permanent  record  of  such  registration  on  or  before 
November  1,  1908,  and  all  persons  so  registered  shall  forever  there- 
after have  the  right  to  vote  unless  disqualified  for  other  reasons, 
provided  such  person  have  paid  his  poll  tax  as  required.* 

On  and  after  the  first  day  of  January,  a.  d.,  1892,  every  elector 

»  Va.  19.  '  Ala.  180. 

»  S.  C.  2,  4.  ,^       ♦  N.  C.  Amt.  1900,  2. 

10 


226  THE    STATE    CONSTITUTIONS  [bOOK    III 

shall,  in  addition  to  the  foregoing  qualifications,  be  able  to  read 
any  section  of  the  Constitution  of  the  State ;  or  he  shall  be  able  to 
understand  the  same  when  read  to  him,  or  give  a  reasonable  inter- 
pretation thereof.* 

In  Louisiana  "  no  male  person  who  was  in  1807,  or  prior,  entitled 
to  vote  under  the  Constitution  or  statutes  of  any  State  of  the  United 
States  wherein  he  then  resided,  and  no  son  or  grandson  of  such  per- 
son not  less  than  twenty-one  years  of  age  at  the  time  of  the  adoption 
of  this  Constitution,  and  no  male  person  of  foreign  birth  who  was 
naturalized  prior  to  1898  shall  be  denied  the  right  to  register  and 
vote  by  reason  of  his  failure  to  possess  the  educational  or  property 
qualifications  prescribed  by  this  Constitution,  provided  he  shall 
have  resided  in  the  State  for  five  years  next  preceding  the  date  at 
which  he  shall  apply  for  registration  and  shall  have  registered  in 
accordance  with  this  article  prior  to  1898;  but  no  person  shall  be 
entitled  to  register  under  this  section  after  said  date. " 

All  registration  under  this  section  closed  on  the  31st  of  August, 
1898,  and  permanent  records  of  voters  so  registering  were  made, 
and  such  persons  are  admitted  to  register  for  all  elections  without 
possessing  the  educational  or  property  qualifications  otherwise  pre- 
scribed by  this  Constitution.^ 

§  247.  Challenges.  —  By  the  Constitution  of  Georgia,  any  voter, 
on  being  challenged,  must  make  oath  that  he  has  complied  with  the 
constitutional  requirements.^ 

§  248.  Primaries.  —  Only  registered  and  qualified  electors  can 
vote  at  primaries.*  The  Legislature  shall  provide  by  law  for  the 
regulation  of  primaries  and  punishing  fraud  at  the  same.^ 

The  Legislature  shall  enact  laws  providing  for  a  mandatory 
primary  system,  which  shall  provide  for  the  nomination  of  all  candi- 
dates in  all  elections  for  State,  District,  County,  and  municipal 
officers,  for  all  political  parties,  including  United  States  senators. 
Provided,  however,  this  provision  shall  not  exclude  the  right  of  the 
people  to  place  on  the  ballot  by  petition  any  *non-partisan  candidate.^ 

§  249.  Municipal  Elections,  Special  Provision.  —  The  voter  must 
have  been  resident  four  months  and  paid  all  taxes  due  for  the  pre- 
ceding fiscal  year.^ 

*     »  Miss.  244.  s  Cal.  1899,  p.  501;   La.  215;   S.  C. 

2  La.  197  (5).  2,  10;    Miss.  247. 
»  Ga.  2,  1,  2.  «  Okla.  3,  5. 

*  La.  200 ;  Va.  35.  '  S.  C.  2,  12. 


PART    II ]  POLITICAL    PROVISIONS  227 

No  person  less  than  sixty  years  of  age  can  vote  at  any  election  who 
shall  not,  in  addition  to  the  qualifications  herein  prescribed,  have 
paid  on  or  before  the  end  of  each  year,  for  two  years  preceding  the 
year  in  which  he  offers  to  vote,  a  poll  tax  of  one  dollar  per  annum  to 
be  used  for  the  public  schools;  but  such  taxes  are  a  lien  only  upon 
assessed  property,  and  every  person  liable  for  such  tax  before  being 
allowed  to  vote  must  exhibit  to  the  registration  officers  his  poll  tax 
for  two  years.* 


Article  25.     Disfranchisement 

§  250.  General  Provisions.  —  The  Tennessee  Constitution  de- 
clares that  no  person  shall  be  deprived  of  the  right  of  suffrage  except 
upon  conviction  by  a  jury  of  some  infamous  crime  previously  as- 
certained and  determined  by  law  and  judgment  thereon  by  a  court 
of  competent  jurisdiction.^  Or,  upon  lawful  conviction  of  a  felony 
at  common  law.^ 

§  251.  Insanity.  —  By  the  Constitutions  of  most  States  no  in- 
sane or  idiot  person  can  vote.*  So,  in  a  few,  no  person  under  guar- 
dianship.^ No  person  in  gaol  on  convictiAi  of  a  criminal  offence.^ 
In  a  few  States  there  are  constitutional  provisions  disfranchising 
paupers;  thus,  in  some,  that  no  pauper  can  vote.^  So,  in  others,  no 
person  kept  at  a  poor  house  or  asylum  at  the  public  expense.^  So, 
in  Texas,  no  pauper  supported  by  any  county. 

Exception.  —  But  these  provisions  do  not  apply  to  any  person 
who  has  served  in  the  United  States  army  or  navy  in  time  of  war  and 
been  honorably  discharged.^    Nor  to  Soldiers'  Home  inmates.'" 

§  252.  Crime.  —  By  the  Constitutions  of  most  States,  no  person 
convicted  of  infamous  crime  can  vote.'*    In  other  States,  the  Legis- 

'  La.  198.  Md.  1,  2;  Me.  2,  1 ;   Minn. ;  N.  D. ;  R. 

^  Tenn.  1,  5.    This  is  propably  im-  I.;   S.  D. ;    Wis. 

plied  in  other  States.    See  §  130.  «  Ida.,  Okla. 

=•  Ark.  3,  2.  '  Del.  5,  2 ;  Mass.  Amt.  3  ;  Me.  2,  1 ; 

*  Ala.   182;    Ark.  3,  5;    Cal.  2,  1 ;  N.  H.  2,  28;    N.  J.  2,  1;    R.  I.  2,  4; 

Del.  5,  2 ;    Fla.  6,  4  ;   Ga.  2,  2,  1 ;    Ida.  Tex.  6,  1 ;   Va.  23 ;   W.  Va.  4,  1. 

6,  3;    lo.  2,  5;    Kan.  5,  2;    Ky.  145;  «  La.  202;    Mo.  8,  8;    Okla.  3,  1; 

La.  202  ;   Minn.  7,  2  ;   Miss.  241 ;   Men.  S.  C.  2,  6;     See  §  242. 

9,8;  N.  D.  127;  Neb.  7,  2 ;  Nev.  2,  1 ;  'Mass.    Amt.    28;     Okla.     (or   the 

N.  J.  2,  1 ;  O.  5,  6;  Okla.  3,  1 ;  Ore.  2,  Confederate  army). 

3;    R.  L  2,  4;    S.  C.  2,  6;    S.  D.  7,  8;  '"  La.;   Mich.  Amt.  1893,  p.  439. 

Tex.  6,  1 ;    Utah  4,  6;   Va.  23;    Wash.  "  Ala.  182;  Cal.  2,  1 ;  Ct.  6,  3 ;   Ga. 

6,  3  ;  W.  Va.  4,  1 ;  Wis.  3.  2  ;  Wy.  6,  6.  2.  2,  1 ;   Ida.  6,  3 ;   lo.  2,  5 ;   Md.  1,2; 

»  Fla.;   Ida.;  Kan.;  Mass.  Amt.  3;  La.  202;  N.  C.  6,  1 ;  Neb.  7,  2;   Nev. 


228 


THE   STATE   CONSTITUTIONS 


[book   III 


lature  may  pass  laws  to  such  effect/  or  to  disfranchise  persons  con- 
victed of  "other  high  crimes";^  or  high  misdemeanors.^  So,  in 
several,  specially,  no  person  convicted  of  "felony."*  And  no  per- 
son confined  in  public  prison.^  And,  specially,  no  person  convicted 
of  larceny  can  vote;*'  of  forgery;'  treason."  No  person  who  has  ever 
borne  arms  voluntarily  against  the  United  States  (if,  in  Nevada,  such 
person  was  over  eighteen  at  the  time).®  No  person  guilty  of  mur- 
der ;  ^^  adultery ;  ^^  bigamy ;  '^  vagrancy ;  '^  receiving  stolen  goods ; ' * 
living  in  adultery;'''  selling  or  offering  votes  ;*^  other  offences  con- 
nected with  the  election  laws;''  bartering  or  selling,  or  offering  to 
buy  votes ;  '^  burglary ;  '^  assault  and  battery  on  the  wife ;  ^^  a  biga- 
mist or  polygamist ; "'  or  persons  advising  polygamy ; ""  a  person  who 
preaches  or  advises  that  the  rules  of  the  State  are  not  our  supreme 
law.^^  No  person  who  held  civil  or  military  office  under  the  Con- 
federate States ;  ^*  no  person  who  in  any  manner  voluntarily  aided  or 
abetted  the  Rebellion.^^  And  no  one  dishonorably  discharged  from 
the  United  States  service.^^  For  perjury  ;^'  malfeasance  in  office ;  ^^ 
misdemeanors  connected  with  the  right  of  suffrage ;  ^®  embezzlement 
of  the  public  funds.^*^     For  defrauding  the  United  States,  or  any 

2,1;  N.  J.  2,  1 ;  Ore.  2,3;  R.  I.  2,  4 ;        '-  Ala. ;   S.  C. 
Tex.  6,  1 ;    Wash.  6,  3 ;    W.  Va.  4,  1 ; 
Wy.    6,    6.     Whether   the    conviction 
was   in   the  home  State,  or  any  other 
(Nev.).     Compare  U.  S.  Amt.  14,  2. 

»  Ark.  1891,  p.  314;  Fla.  6,  4;  111. 
7,7;  Ind.  2,8;  Minn.  4,  15;  Mo.  8,  10; 
N.  Y.  2,  2 ;  O.  5,  4 ;  Tenn.  4,  2 ;  Wis. 
3,  6. 

2  Cal.  20,  11;  Tex.  16,  2. 

'  Ky. 

*  Ark.  3,  2;  Del.  5,  2;  Fla.  6,  4; 
Ida.  6,  3 ;  Kan.  5,  2 ;  Ky.  145 ;  Minn. 
7,  2;  Mo.;  Mon.  9,  2;  N.  C. :  N.  D. 
127 ;  Okla.  3,1;  S.  D.  7,  8 ;  Va.  23 ; 
Wis.  3,  2. 

*  Col.  7,  10 ;  Ky. ;  La. ;  Mo.  8,  8 ; 
S.  C. 

«  Ala.  182 ;  Ct.  6,  3 ;   Fla.  6,  5 ;  Ga. 
2,  2,  1;   La.;  Md.  1,2;  Miss 
6;   Va.  23;   Wis.  3,6. 

Ala.;  Cal.  20,  11;  Ct.  14, 4;  Miss,    be    granted    by    the    United    States 


Ala. 
Ala. 

Ala. ;   S.  C. 

Ala. 

Ala. 

Ala. 

Ida.,  Ky. 

Ala.,  Miss.,  S.  C. 
20  Ala.,  S.  C. 
2'  Ida. 

22  Ida. 

23  Ida. 

2«  Nev. 

2^  Kan. 

2*  Except,  in  Kansas,  persons  honor- 
ably discharged  from  the  military  ser- 
vice of  the  United  States,  after  April, 
1861,  and  who  had  served  at  least  one 
year  therein,  are  not  so  disfranchised. 

S.  C.  2,    And  in  Nevada,  the  foregoing  provi- 
sions cease  to  apply  when  an  amnesty 


government. 
2'  Ala. ;     Cal. 


241;   S.  C. ;   Tex.  16,  2;    Va. 

*  Ala. ;    Ga. ;     Ida. ;     Ky. ;    Minn. ; 
N.  D.  127;  Neb.;  Nev.  2,  1 ;  S.  D.  7,   Miss.;   O. ;   S.  C. ;  Tex.;   Va 
8;    Utah;    Va. ;    W.  Va.,  4,  1;    Wis.        28  ^la.,  Cal.,  Ga, 
3,  2. 

»  Kan.  5,  2  ;   Nev. 

'"  Ala. 

»  S.  C. 


Ct. ;     Minn.    4,  15; 


29  Mo.;  S.  C;  Utah  4,  6. 
'°  Cal.    Amt.    1893,    p.    543; 
Miss. ;    Va. 


Ga.; 


PART   II]  POLITICAL    PROVISIONS  229 

State  government/  or  fraudulent  bankruptcy.^  Obtaining  money 
under  false  pretences;^  robbery;*  arson ;^  miscegenation,  sodomy, 
or  fornication ;  ^  incest ; '  assault  to  rape ;  ^  or  to  rob ;  ^  breach  of 
trust/"     Unless  legally  restored  to  the  rights  of  citizenship,'^ 

§  254.  Bribery.  —  By  the  Constitutions  of  many  States,  no 
person  convicted  of  bribery  can  vote;'^  whether  giving  or  receiving 
the  bribe.*^  So,  no  person  guilty  of  giving  or  offering  to  give  or 
receive  a  bribe.'*  So,  no  person  convicted  of  bribery  at  elections,  as 
to  both  parties.*^  A  person  giving  or  offering  or  receiving  a  bribe 
at  an  election  is  disqualified  to  vote  at  that  election}^  No  member  of 
the  Legislature  convicted  of  bribery  can  vote."  In  Pennsylvania, 
any  person  convicted  of  wilful  violation  of  the  election  laws  is 
deprived  of  the  right  of  suffrage  for  four  years.'^ 

§  255.  Betting  on  an  Election  disqualifies  the  persons  interested 
from  voting  at  that  election.'^  And  in  Florida,  laws  shall  be  passed 
to  deprive  a  person  convicted  of  so  betting  of  the  right  of  suffrage 
absolutely.'" 

§  256.  Duelling.  —  By  the  Constitutions  of  several  States  a 
person  is  disfranchised  by  being  concerned  in  a  duel  in  the  same 
cases  in  the  several  States  respectively  that  he  would  be  disqualified 
to  hold  office  (see  §  223).^'  And  so,  a  conviction  for  duelling  is 
cause  of  disfranchisement.^^  Or  sending  or  accepting  a  challenge,  or 
assisting  in  a  duel.^^  But  the  Legislature  on  two-thirds  vote  may 
remove  the  disqualification.^* 

'  Kan.  §  253,  notes.    For  a  term  not  over  ten 

^  Ct.  years  (Me.). 

»  Ala.,  Miss.,  S.  C,  Va.  »  Del.,  Miss. 

*  S.  C.  "  Kan. 

«  S.  C.  15  Ga.;    Ida.  6,  3;    Ky. ;    Md.  1,  3; 

«  Ala.,  S.  C.  Me.  9,  13;   Va. ;   W.  Va. 

'  S.  C.  '«  Del.  5,  3;   N.  Y. ;   Pa.,  8,  8;   Vt. 

«  S.  C.  2,  6.  2,  34. 

»  Ala.  "  Cal.  4,  35. 

'»  S.  C.  »»  Pa.  8,  9. 

"  Fla.,  Ga.,   Ida.,   Kan.,   Ky.,   La.,  '»  N.  Y. ;  Wis.  3,  6. 

Md.,  Minn.,  Mon.,  N.  C.,  N.  D.,  Neb.,  ^o  YXa..  5,  4. 

Nev.,  N.  J.,  O.,  Olda.,  R.  I.,  S.  C,  S.  D.,  ^i  Qal.  20,  2 ;    Fla.  6,  5 ;   Mich.  7,  8 ; 

Wash.,  Wis.,  Wy.  Miss.  19;  Nev.  15,3;  Tex.  16,4;  Wis. 

12  Ala.;  Cal.  20,  11;   a.  6,  3;   Del.  13,  2. 

5,  7 ;    Fla.  6,  5 ;   Ga. ;   Minn. ;   N.  J.  2,  -^  Ct.  6,  3. ;   Va.  23. 

2;   N.  Y.;   O.  5,  4;   R.  I.  2,  4;   S.  C. ;  =3  Va. 

Tex.  16,  2 ;    Va.  23 ;    Wis.  3,  6.     See  ^*  Va.  57. 


230 


THE   STATE   CONSTITUTIONS 


[book   III 


Article  20.     Removal  of  Officers 

§  2G0.  By  Impeachment^  —  By  the  Constitutions  of  many 
States,  every  civil  State  Ofiicer  may  be  impeiu-'hed.^  So,  in  Kansas, 
all  officers  under  the  Constitution.^  All  "executive"  officers;* 
the  governor;''  lieutenant-governor;"  secretary  of  State;'  treasurer 
of  the  State;*  the  council;'*  the  auditor;'"  the  comptroller;** 
the  attorney-general;*^  all  attorneys  for  the  State ;'^  the  superin- 
tendent of  education;'*  the  commissioner  of  public  lands ;'^  the 
railroad  commissioners ;'°  the  surveyor-general;*'  all  judicial  ofiicers 
or  judges;'^  all  judges  of  the  supreme  courts;'^  all  judges  of  the 
superior  courts;^"  all  judges  of  the  criminal  court;^*  all  judges  of 
the  Court  of  Appeal  ;^^  all  chancellors.^^  Any  such  officer  may  be 
impeached  within  two  years  after  his  term  of  office  expired.^*  The 
Constitution  forbids  impeachment  of  public  officers.'^ 

§  261.  The  Causes  of  Impeachment  are  in  many  States,  crime. 
Thus  in  detail  (for  citations,  see  also  in  §  260) : 

Crime     (generally).^®      Misdemeanors   (generally).^'      Any   high 


*  The  right  of  impeachment  by  the 
Commons,  to  be  tried  by  the  Lords, 
existed  from  early  times,  in  England, 
but  lay  dormant  from  1449  to  1621 
(T.-L.  409). 

-  Ark.  15,  1;  Col.  13,  2;  Del.  6,  2; 
111.5,15;  Ind.  6,  7;  lo.  3,  20;  Ky.  68; 
Mass.  2,  1,  2,  8;  Me.  9,  5;  Mich.  12,  1; 
Miss.  50;  Mon.  5,  17;  N.  D.  196;  Neb. 
o,  5;  Nev.  7,  2;  N.  H.  2,  37;  N.  J.  5, 
11;  O.  2,  24;  Okla.  8,  1;  Pa.  6,  3; 
S.  D.  16,  3;  Utah  6,  19;  Va.  54;  Vt. 
2,  24;  Wash.  5,  2;  W.  Va.  4,  9;  Wis. 
7,  1 ;  Wy.  3,  18. 

3  Kan.  2,  28. 

*  Ct.  9,  3;   Fla.;   R.  I.  11,  3;   S.  C. 
«  Ala.  173;    Ark.;    Cal.  4,  18;    Col. 

Ct.;  Del.;  Fla.  3,  29;  111.;  lo.;  Kan. 
Ky.;  La.  217;  Minn.  13,  1;  Miss. 
Mo.  7,  1;  Mon.;  N.  C.  4,  4;  N.  D. 
Nev.;  N.  H.  2,  39;  N.  J.  ;  O.  2,  24 
Okla.;  Pa.;  R.  I.;  S.  C.  15,  5;  S.  D. 
Tenn.  5,  4;  Tex.  15,  2;  Utah;  Va. 
Wash.;  Wis.;  Wy. 

«  Ala.,  Cal.,  Fla.,  La.,  Mo.,  Tex.,  Va. 

^  Ala.,  Cal.,  Fla.,  La.,  Minn.,  Mo., 
Tenn. 

*  Ala.,  Cal.,  La.,  Minn.,  Mo.,  Tenn., 
Tex. 

«  N.  H.  2,  62. 


'"  Ala.,  La.,  Minn.,  Mo. 

"  Cal.,  Tenn.,  Tex. 

*2  Ala.,  Cal.,  La.,  Minn.,  Mo.,  Tex., 
Va. 

^3  Ark.,  Tenn. 

"  Ala.,  La.,  Mo. 

''  Tex. 

"  La. 

»'  Cal. 

'«  Col.;  Ct.;  La.;  Md.  4,  4;  Mon.; 
Nev.;  N.  D.;  O.;  R.  L;  S.  C;  S.  D.; 
Tenn.;  Utah;  Va. ;  Wash.;  Wy. 

18  Ala.,  Ark.,  Cal.,  Fla.,  lo.,  Minn., 
Mo.,  Okla.,  Tenn.,  Tex.     See  §  551. 

2"  Ark.,  Cal.,  Fla.,  lo.,  Minn.,  Mo., 
Tex. 

21  Mo. 

2=  Tex. 

2^  Ark.,  Tenn. 

2*  N.  J. 

2^  Ore.  1,  19. 

26  Ark.,  Col.,  Ind.,  La.,  Mich.,  Minn., 
Mo.,  Mon.,  N.  D.,  S.  D.,  Utah,  Va., 
Wash.,  W.  Va.,  Wis.,  Wy.  It  may  now 
be  regarded  as  settled  that  "high  crimes 
and  misdemeanors  may  include  mis- 
conduct in  office  which  does  not  in 
itself  constitute  a  crime."  '  (McClain, 
p.  61.) 

"  Ark.,  Col.,  La.,  Mich.,  Minn.,  Mo., 


PART   II] 


POLITICAL   PROVISIONS 


231 


crime  in  office.*  Any  misdemeanor  in  office.^  Any  offence  involving 
moral  turpitude,  committed  while  in  office,  or  connected  therewith.^ 
Treason.*  Bribery.^  Habitual  drunkenness.^  Drunkenness,  at 
any  time  or  place.^  "Gross  immorality."**  In  several,  malfeas- 
ance'* or  misconduct  in  office.'"  Corruption  in  office.'*  Or  "favor- 
itism." Extortion  in  oflice.'^  Oppression  in  office.'^  Neglect  of 
official  duties.'*  "Maladministration."'^  Incompetency.'®  Inca- 
pacity, mental   or   physical.'^     No  causes  are  specified.'^ 

§  202.  Process  of  Impeachment.  —  By  the  Constitutions  of  nearly 
all,  the  impeachment  is  first  made  by  the  House  of  Representatives.'^ 
In  most,  a  majority  of  a  quorum  seems  to  be  sufficient  for  impeach- 
ment in  the  house  as  in  ordinary  votes  (see  §  304).^°  But  in  a  few,  a 
majority  of  the  members  elected.^'  In  two,  a  vote  of  two  thirds  of  the 
members  present,"  or  elected.^^  And  the  impeachment  is  then,  in 
all  these  States  but  two,  tried  by  the  Senate,  sitting  as  a  court, 
under  oath.'*  In  many  States,  with  the  chief  justice  of  the  Supreme 
Court  presiding  (in  cases  of  impeachment  of  the  governor),^^ 

Two  thirds  of  the  senators  elected  must,  in  many  States,  concur 


Mon.,  Utah,  Va.,  Wash.,  W.  Va.,  Wis., 
Wy. 

^  Del.,  Miss.,  Tenn. 

2  Cal,  Fla.,  Del.,  111.,  lo.,  Kan.,  Ky., 
Me.,  Miss.,  N.  D.,  Neb.,  Nev.,  O.,  Pa., 
S.  D. 

3  Ala.,  Okla. 
*  Del.,  Miss. 

5  Del. ;  Miss. ;  N.  H.  2,  37. 

«  Ala.,  La.,  Mo.,  N.  D.,  Okla. 

^  Neb.  14,3;  S.  D. 

«  W.  Va. 

»  Ark.;   Col.;    Ic;   La.;   Mass.  2,  1, 


6;  Md.  3,  26;  Me.  4,  1,  8;  Mich.  12, 
1  &  2;  Minn.  4,  14;  Miss.  49;  Mo.  7, 
2;  Mon.  5,  16;  N.  C.  4,  4;  N.  D.  194; 
Nev.  7,  1;  N.  H.  2,  16;  N.  J.  6,  3,  1; 
N.  Y.  6,  13;  O.  2,  23;  Okla.  8,  3;  Pa. 
6,  1;  R.  L  11,  1;  S.  C.  15,  1;  S.  D.  16, 
1;  Tenn.  5,  1;  Tex.  15,  1;  Utah  6,  19; 
Va.  54;  Vt.  Amt.  25,  3;  Wash.  5,  1; 
W.  Va.  4,  9;  Wis.  7,  1;  Wy.  3,  17. 

20  Ark.,  Cal.,  Ct.,  Ga.,  Ind.,  lo.,  Kan., 
Ky.,  Mass.,  Me.,  Mo.,  N.  C,  N.  H., 
Tenn.,  Tex.,  W.  Va. 

='  Ala.,  Col.,  III.,  Md.,  Mich.,  Minn., 


2,8;  Mo.;  Mon.;  N.  D.;  Nev.;  N.  H.;    Mon.,  N.  D.,  Nev.,  N.  J.,  N.  Y.,  O., 


S.  D.;  Utah;  Va. ;  Wash.;  Wy. 

'o  Ala.,  La.,  Mich.,  Minn.,  N.  D., 
H.,  Okla.,  S.  D.,  Va.,  W.  Va.,  Wis. 

'1  La. 

'2  La. 

"  La.,  Mo. 

"  Ala.,  Ind.,  Okla.,  Va.,  W.  Va. 


S.  D.,  Utah,  Wash.,  Wis.,  Wy. 
N.        22  Fla.,  Miss. 

23  Del.,  Ind.,  R.  I.,  S.  C,  Vt. 

2*  Ala. ;  Ark. ;  Cal. ;  Col. ;  Ct.  9,  2 ; 
Del.;  Fla.;  Ga.  3,  5,  3;  Ida.  5,  3; 
III.;  Ind.;  lo.;  Kan.;  Ky.  67;  La.; 
Mass.  2,   1,  2,  8;    Md.;    Me.  4,  2,  7; 


»5  Mass.;    N.  H.;    Va.;    Vt.  2,  24;    Mich.;     Minn.;     Miss.;    Mo.;     Mon. 


W.  Va. 

«  Ala.,  La.,  Okla.,  W.  Va. 
"  Ind. 

'»  S.  C. 


N.  C.  4,  3;  N.  D.  195;  Nev.;  N.  H.  2, 
37;  N.  J.;  O.;  Okla.;  Pa.  6,  2;  R.I. 
11,  2;  S.  C.  15,  2;  S.  D.  16,  2;  Tenn. 
5,  2;    Tex.   15,  2;    Utah  6,  18;    Va.; 


'«  Ala.  173;    Ark.  15,  2;    Cal.  4,  17;  Vt.  Amt.  7;    Wash.;    W.  Va.;    Wis.; 

Col.  13,  1 ;   Ct.  9,  1 ;   Del.  6,  1 ;    Fla.  3,  Wy. 

29;    1897,  p'.  308;   Ga.  3,  6,  3;    Ida.  5,  25  ^la.;    Del.;    Ida.;    Mon.;    N.  D.; 

4;   111.4.24;  Ind.  6,  7;  lo.  3,  19;  Kan.  N.    H.    2,    39;   Okla.;    S.    D.;   Utah; 

2,  27;   Ky.  66;   La.  218;  Mass.  2,  1,  3,  Wash.;  Wy. 


232  THE   STATE   CONSTITUTIONS  [BOOK   III 

to  convict  of  the  impcacbincnt.*  In  otliors,  two  thirds  of  the  senators, 
&c.,  |)resent.'  In  four,  a  vote  of  a  (juoruni,  as  in  other  cases  (see 
§  304).^  But  in  Nebraska,  the  impeachment  is  first  made  by  the 
Legishiture  in  joint  convention  upon  resolution  in  either  house ;  and 
a  majority  of  elected  members  must  concur;  and  it  is  then  tried  by 
the  judges  of  the  Supreme  Court."*  So,  in  Nev^'  York,  it  is  tried  by 
the  Senate  and  the  judges  of  the  Court  of  Appeals. 

§  263.  The  Ejjcct  of  Impeachment  is,  by  the  Constitutions  of  all 
but  Maryland  and  Oregon,  merely  to  remove  from  office;  and,  in  all 
these  States  except  Rhode  Island,  Indiana,  Michigan, South  Carolina, 
and  Oklahoma,  to  disqualify  the  person  impeached  from  holding 
any  other  State  office;  and  the  person  impeached,  whether  convicted 
or  not  on  the  impeachment,  is  nevertheless  liable  to  indictment, 
trial,  and  punishment  according  to  law.^  But  in  one  State  such 
disqualification  only  lasts  during  the  term  for  which  he  was  elected 
or  appointed.^  In  many,  when  an  officer  is  impeached,  he  is  at  once 
suspended  from  his  office  until  acquitted.'  In  Tennessee,  the  Legis- 
lature has  no  power  to  relieve  the  person  impeached  from  the  above 
penalties  (and  see  also  §  162).^  He  cannot  be  again  impeached  for 
the  same  ofi'ence.^ 

§  265.  Removal  by  Address.  —  Certain  officers  may,  by  the 
Constitutions  of  many  States,  be  removed  by  the  Legislature ;  thus, 
in  many  States,  judges  of  the  supreme  or  superior  courts,^"  or 
all  judicial  officers.^^  So,  judges  of  the  supreme  court,  and 
all  other  judicial   officers,   on   recommendation   of   the   governor, 

1  Cal.,    Col.,    Del.,    Ida.,    111.,    Ind.,  15,3;   S.  D. ;   Tenn.  5,  4 ;   Tex.  15,  4; 

Kan.,   La.,  Md.,   Mich.,   Mon.,  N.  D.,  Utah;    Va.  54;    Vt.  Amt.  7;    Wash.; 

Nev.,  N.J.,0.,R.  I.,  S.C,  S.D.,  Utah,  W.  Va.  4,  9;   Wis.  7,  1 ;   Wy. 

Wash.,  W.  Va.,  Wy.  «  Ala. 

^  Ark.;  Ct. ;  Fla. ;  Ga.  3,  5,  4  ;  lo. ;  ^  Fla. ;  La.  219;  Mich.  12,  4  ;  Minn. 

Ky.;    La.;    Me.;    Minn.;    Mo.;   N.  C. ;  13,3;  N.  D.  198;   Neb.;  N.J.  6,  3,  2; 

N.  Y.;  Okla.;  Pa.;  Tenn. ;  Tex.  15,  3 ;  N.  Y. ;   R.  I.  11,2;   S.  D.  16,5;  Tex. 

Va.;   Vt.;   Wis.    Soin  U.  S.  C.  L  3  (6).  15,5;   Utah  6,  20;   Wis.  7,  1. 

^  Ala.,  Mass.,  Miss.,  N.  H.  *  The  principle  that  the  power  to 

*  Neb.  3,  14.  pardon  does  not   extend  to  impeach- 

^  Ala.  176;    Ark.  15,  1;   Cal.  4,  18;  ments    is    embodied    in    the    Act    of 

Col.  13,  2;   Ct.  9,  3;   Del.  6,  2;   Fla.  3,  Settlement,  but  was  claimed  in  Danby's 

29;   Ga.  3,  5,  5;    Ida.  5,  3;    111.  4,  24;  case,  1679. 

lo.  3,  20;    Kan.  2,  28;    Ky.  68;    La.  »  N.  D.  201;   S.  D.  16,  8. 

218;    Mass.  2,   1,  2,  8;    Me.  4,  2,  7 ;  '"  Cal.  6,   10;  Kan.  3,  15;  Miss.  53 

Mich.  12,  2;    Minn.  13,  1;    Miss.  51;  N.  C.   4,   31;    Nev.    7,    3;   O.   4,    17 

Mo.  7,  2;    Mon.  5,  17;    N.  C.  4,  3;  N.  R.   I.    10,  4;    S.  C.   15,  4;    Va.    104 

D. ;    Neb.  3,  14;    Nev.  7.  2 ;    N.  H.  2,  Wash,  4.  9;    Wis.  7,   13;    W.  Va.  8, 

38 ;  N.  J.  6,  3,  3  ;  N.  Y.  6,  3 ;  O.  2,  24 ;  18 ;    Utah  8,  11. 

Okla.  8,  5;  Pa.  6,  3 ;  R.I.  11,  3;  S.C.  "  111.6,30;  Nev.;  O.;   Wash. 


PART   II] 


POLITICAL   PROVISIONS 


233 


bv  vote  of  two  thirds  of  the  senate  elected.^  All  civil  officers,^  or 
all  executive  officers.^  All  officers  not  liable  to  impeachment  may 
be  removed  as  provided  by  law.^  In  a  few,  a  two-thirds  vote  of  both 
houses  elected  is  necessary,^  or  a  three-fourths  vote.^  In  others  they 
are  removed  by  a  majority  vote  of  elected  members  in  joint  com- 
mittee,' or  by  the  governor  (or  governor  and  council),  upon  the 
address  of  both  houses  of  the  Legislature ;  thus:  all  judicial  officers 
or  judges;^  the  judges  of  the  supreme  and  superior  courts;^  all 
State  officers  except  members  of  the  Legislature ;  ^*^  the  auditor, 
treasurer,  secretary  of  state,  attorney-general,  and  chancellors;^^ 
the  attorney-general/^  In  one  State,  by  the  governor,  on  address  of 
two  thirds  of  the  full  senate,  all  officers  elected  by  the  people  except 
members  of  the  Legislature  and  judges.^^  Minor  judges,  by  the 
senate  on  address  by  the  governor/^ 

The  Causes  of  Removal  of  officers  under  this  section  are  by  the 
Constitutions  specified  to  be  any  reasonable  cause,'^  misbehavior  in 
office,^"  any  infamous  crime,^'  incompetence,^^  neglect  of  duty,^^ 
age,^**  mental  or  bodily  infirmity ,^^  corruption  in  office,^"  drunken- 
ness,^^ if  habitual.^* 

§  266.  Removal  hy  the  Governor.  —  So,  in  many  States,  certain 
officers  may  be  removed  by  the  governor  alone,  as,  namely:  any 
officer  whom  he  has  power  to  appoint,^^  all  officers  not  legislative  or 
judicial,^®  judges,^'  sheriff s,^^  coroners,^^  district  attorneys,^"  county 


>  N.  Y.  6,  11. 
»  La.  163. 
3  S.  C. 

*  Fla.  14,  15;  N.  D.  197;  S.  D.  16, 
4;  Utah  6,  21;  Wash.  5,  3;  Wy.  3, 
19.    See  also  §  268. 

5  Cal.,  Kan.,  La.,  Miss.,  N.  C,  N.  Y., 
Nev.,  O.,  Utah,  Wis.,  W.  Va. 

«  111.,  Wash. 

'  R.  I.,  Va. 

»  Mass.  2,  3,  1 ;  Md.  4,  4 ;  Mich.  12, 
6;  Mo.  6,  41;  N.  H.  2,  72;  Pa.  5,  15; 
S.  C. ;  Tex.  15,  8.  Two  thirds  of  each 
house  must  concur  (Ark.,  Ct.,  Del., 
Ky.,  La.,  Md.,  Mich.,  Miss.,  Mo.,  Ore., 
Pa.,  S.  C,  Tex.). 

•  Ark.  15,  3  ;  Ct.  5,  3 ;  Ky.  112,  129; 
Ore.  7,  20. 

'»  Del.  3,  13;    La.  220;    Me.  9,  5; 
S.  C. 
"  Ark. 
'2  Ore.;  Va.  107. 


"  Pa.  6,  4. 

'*  Cal.  1904,  Nov.  8. 

'5  Del.,  Ky.,  La.,  Mich.,  Miss.,  Nev., 
Pa.,  S.  C,  Wash. 

'«  N.  D.,  Ore.,  Pa.,  S.  D.,  Wash., 
Wy.,  Utah. 

"  N.  D.,  Pa.,  S.  D.,  Utah,  Wy. 

'»  N.  D.,  Ore.,  S.  D.,  Wash.,  W.  Va. 

'8  Ore.,  S.  C. 

2«  W.  Va. 

='  Mo.,  N.  C,  W.  Va. 

22  Wash.,  Ore. 

^  S.  D. 

^*  N.  D. 

25  Col.  4,  6;  111.  5,  12;  Md.  2,  15; 
Neb.  5,  12 ;  Pa.  6,  4  (except  judges) ; 
W.  Va.  7,  10. 


29  Mich.  12,  8. 
2^  Md.  4,  4. 

28  N.  Y.  10,  1; 

29  N.  Y.,  Wis. 

30  N.  Y.,  Wis. 


Wis.  6,  4. 


234  THH   STATE    CONSTITUTIONS  [rOOK   III 

clerks,^  registers  of  deeds,^  all  public  officers.^  In  Florida  by  the 
governor,  with  the  concurrence  of  the  senate,  all  officers  not  liable  to 
impeachment  may  be  removed;  in  California  by  the  senate  on 
recommendation  of  the  governor,  judges  of  inferior  courts.^  Me 
may  susj)en(l  all  executive  State  officers  except  the  lieutenant-governor 
until  the  next  session  of  the  Legislature."'  He  shall  prosecute  and 
suspend  officers  charged  with  embezzlement." 

The  Cmiscs  of  Removal  under  this  section  are  specified  to  be: 
incompetency;'  malfeasance  in  office;^  misconduct ; **  neglect  of 
duty ; '"  conviction  in  a  court  of  law  of  incompetency,  misbehavior,  or 
neglect  in  office,or  anycrirae(as  to  judges  only) ;"  gross  immorality.'^ 

§  2G7.  Removal  bij  the  Courts.  In  a  few  states,  certain  officers 
may  be  removed  by  the  judges  of  the  supreme  court. 

Thus,  judges  of  the  superior  court ;'^  judicial  officers;'*  all 
officers  not  liable  to  impeachment ;  '^  any  judge  (except  those 
mentioned  in  §  2G0)  ; '"   any  prosecuting  attorney.'' 

By  the  judges  of  the  superior  courts :  — - 

Minor  officers;'^  county  or  town  officers;'^  county  judges, 
attorneys,  clerks  of  court,  and  justices  of  the  peace.'"  In  Oregon, 
all  officers  may  be  tried  for  incompetence,  corruption,  malfeasance, 
or  delinquency  in  office,  as  for  criminal  offences;  and  judgment 
may  be  rendered  for  dismissal  from  office.^' 

§  268.  Other  Removals  from  Office.  The  Constitutions  of 
other  States  provide  that  the  Legislature  may  provide  for  the 
removal  of  inferior  officers  from  office,  for  malfeasance  or  non- 
feasance of  their  duties  ;^^  for  official  misconduct,  incompetence, 
neglect  of  duty,  or  gross  immorality ,^^  or  for  any  cause.^* 

'  N.  Y.  "  Ala.  174. 

="  Wis.  '^  Tenn.  5,  5. 

»  Del.  15,  6.  '«  Ind.  7,  12. 

♦  Cal.  6,  10;  Fla.  4,  15.  ''  Ind. 

»  Va.  73.  >«  La.  222. 

•  S.  C.  4,  22.  '«  Ark.  7,  27 ;   La. ;  Tex.  5,  24. 
'  Col. ;     Fla. ;     111. ;     Md. ;     Neb. ;        =="  Tex.  5,  24  ;  La. 

W.   Va.  7,   10.  ='  Ore.  7,  19. 

•     «  Col.,  Del.,  Fla.,  lU.,  Neb.,  W.  Va.  =^  Col.  13,  3;    Minn.  13,  2;    Mo.  14, 

»  Md.,  W.  Va.  7;   Mon.  5,  18;   N.  D.  197;   Nev.  7,  4; 

>»  Col.,  Fla.,  111.,  Neb.,  W.  Va.  S.  C.  3,  27;   S.  D.  16,  4;  Utah;   Wash. 

"  Del.,  Md.  5,  3;Wy.    See  §  265,  2d  paragraph. 

'2  W.  Va.  "  W.  Va.  4,  6. 

"  La.  221 ;   Tex.  15,  6.  ^^  Okla.  8,  2;  Tex.  15,  7. 


PAKT  II]  POLITICAL   PROVISIONS  235 


Article  27.    The  Legislature 

§  270.  General  Provisions}  —  The  Constitutions  of  all  the  States 
provide  that  each  house  of  the  Legislature  shall  judge  of  the  quali- 
fications, elections,  and  returns  of  its  members,  and  determine  the 
rules  of  its  own  proceedings.^  "It  has  all  other  powers  necessary 
and  usual  for  the  Legislature  of  a  free  State."  ^  In  most  States,  each 
house  shall  choose  its  own  officers,^  except,  in  many,  the  president  of 
the  senate,  which  place  is  filled  by  the  lieutenant-governor,^  or  by  the 
governor  or  lieutenant-governor ;  ^  if  neither,  by  the  secretary  of 
State.' 

§  27L  Quorum.  —  By  the  Constitutions  of  nearly  all,  a  majority 
of  elected  members  in  either  house  constitutes  a  quorum.^  But  in 
some  two  thirds  is  necessary.^     And  in  one  State,  a  majority  is  a 

>  Copied  from  U.  S.  C.  I,  5.     The  Ky.  34;  La.;  Mass.  2,  1,  2,  7;  2,  1,  3, 

right  to  determine  contested  elections  10;  Md. ;   Me.  4,  1,  7;   4,  2,  8;  Mich, 

was   finally  vindicated   by  the    House  Minn.  4,  5 ;    Miss. ;    Mo. ;    Mon.  5,  9 ; 

of    Commons    against  James    I.    who  N.  C.  2,  18-20;    N.  D.  31,  36;    Neb.; 

tried    to    transfer    such    cases    to    his  Nev. ;   N.  H.  2,   21  &36;   N.  J.  4,  4, 

own  Court  of  Chancery,  in  1604.     (T.-  3  ;  N.  Y. ;   O.  2,  8 ;  Okla.  5,  29 ;  Ore. ; 

L.  pp.  389,  390,  421.)    Congress,  having  Pa. ;  R.  I.  5,  2 ;  6,  4 ;  S.  C.  3,  12 ;  S.  D. ; 

delegated  powers  only,   has  not   sue-  Tenn. ;    Tex.  3,  9 ;    Utah   6,  12 ;    Va. 

ceeded   to    the    unlimited    powers    of  47 ;    Vt. ;   Wash.  2,  10 ;   W.  Va. ;   Wis. 

Parliament   to   punish  for   contempt.  4,  9;    Wy.     See  U.  S.  C.  I,  2  (5);  I,  3 

(Reinsch,  American  Legislatures,  176.)  (5). 

2Ala.51,53;  Amt.6;  Ariz.*  1110;         ^  Ala.  51;    Col.;    Ct. ;    4,   13,   111.; 

Ark.  5,  11,  12;  Cal.  4,7  &  9;  Col.  5,  10  Ind. ;    lo.  4,   18;    Ky. ;    La.;    Mich.; 

&  12 ;   Ct.  3,  6  &  8 ;   Del.  2,  8  &  9  ;  Minn. ;  N.  C. ;  Neb. ;  Nev. ;  N.  Y. ;  O.  3, 

Fla.   3,    6;     Ga.   3,   7,    1;     Ida.  3,  9;  16;  Okla.  5,  28;  Pa. ;  Tex. ;  Va. ;  Vt. ; 

111.  4,  9;    Ind.  4,   10;    lo.  3,  7  &  9;  Wash.  3,  16;   Wis.    See  also  §  282. 
Kan.  2,  8 ;   Ky.  38,  39 ;   La.  25 ;   Mass.         «  R.  I.  6,  2. 
2,  1,  2,  4;  2,  1,  3,  10;   Md.  3,  19;   Me.         '  R.  I.  6,  3. 

4,  1,5;  4,  2,5;  4,3,  3  &  4;  Mich.  4,  9;         »  Ala.  52;    Ark.  5,  11;    Cal.  4,  8; 

Minn.  4,3  &  4;   Miss.  38  &  55 ;   Mo.  4,  Col.  5,  11;   Ct.  3,  7 ;   Del.  2,  8;    Fla.  3, 

17;   Mon.  5,9  &  11;   N.  C.2,  22 ;  N.  D.  11;   Ga.  3,  4,  4;    Ida.  3,  10;  111.  4,  9; 

47  &  48;  Neb.  3,  7;  Nev.  4,  6;   N.  H.  lo.  3,  8;    Kan.  2,  8;    Ky.  37;    La.  34; 

2,  24,34;  N.  J.  4,  4,  2;  N.  M.*  63,  35;  Mass.  Amt.  33;    Md.  3,  20;    Me.  4,  3, 

N.  Y.  3,  10;  O.  2,  6  &  8;   Okla.  5,  30;  3;    Mich.  4,  8;    Minn.  4,  3;    Miss.  54; 

Ore.  4,  11;   Pa.  2,  9  &  11;   R.  1.  4,  6  Mo.  4,  18;   Mon.  5,  10;  N.  C.  2,  2;  N. 

&  7;   S.  C.  3,  11;   S.  D.  3,  9;   Tenn.  D.  46;  Neb.  3,  7;  Nev.  4,  13;  N.  J.  4, 

2,  11  &  12;  Tex.  3,  8  &  11;  Utah  6,  4,2;  N.  Y.  3,  10;  0.2,6;  Okla.  5,  30; 

10  &  12;   Va.  47;   Vt.  2,  9;   Amt.6;  Pa.  2,  10;    R.  I.  4,  6;    S.  C.  3,  11;   S. 

Wash.  2,  8  &  9;    W.  Va.  6,  24;  Wis.  D.  3,  9;   Utah  6,  11;   Va.  46;  Vt.  2,  9; 

4,  7  &  8;    Wy.  3,  10  &  12.      But  see  Amt.  6;    Wash.  2,  8;    W.  Va.  6,  24; 

§  238.  Wis.  4,  7;  Wy.  3,  11.    See  U.  S.  C.  I, 

«  Mon.,  N.  D.,  Wy.  5,  (1).    Compare  also  §  303. 


*  Ala.;  Ariz.*;  Ark.;  Cal.;  Col 
Ct.  3,  7 ;  Del.  2,  7  ;  Fla. ;  Ga.  3,  5,  2 
3,  6,  2;    Ida.;    111.;    Ind.  2,  10;    lo. 


»  Ariz.*  1116;    Ind.  4,  11;    Ore.  4, 
12;  Tenn.  2,  11;  Tex.  3,  10. 


236  THE   STATE   CONSTITUTIONS  [BOOK   III 

quorum  in  the  house ;  but  when  less  than  two  thirds  are  present,  a 
two-thirds  vote  is  necessary  to  any  act  or  proceeding;  and  in  the 
senate  thirteen  are  necessary  to  a  quorum,  and  when  less  than 
sixteen  are  present,  a  vote  of  ten  is  necessary.' 

But  a  smaller  number  than  a  (luorum  may  generally  adjourn  from 
day  to  day  and  compel  the  attendance  of  absent  members.- 

§  272.  Speech  in  the  Legislature.  —  The  Constitutions  of  most 
States  provide  that  no  member  of  the  Legislature  for  any  speech  or 
debate  in  either  house  shall  be  questioned  elsewhere.^  So,  in  many, 
that  speech  in  the  legislature  can  be  the  foundation  of  no  prosecution 
or  action  whatever,  civil,  or  criminal,  in  any  other  court  or  place.* 

§  273.  Freedom  from  Arrest.  —  By  the  Constitutions  of  most 
States,  State  senators  and  representatives  are  privileged  from  arrest 
in  all  cases  except  treason,  felony,  and  breach  of  the  peace,  during 
the  session  of  the  Legislature,  or  in  going  to  and  returning  from  the 
Lef^islature.^    For  fifteen  davs  before  and  after  the  session  of  the 

>  N.  H.  2,  19  &  36.  may,  however,  be  expelled  by  the  House 

-  Ala.,  Ark.,  Ariz.,  Cal.,  Col.,  Ct.,  itself,  as  was  the  case  with  Sir  Richard 
Del.,  Fla.,  Ga.,  Ida.,  Ind.,  lo.,  Ky.,  La.,  Steele  in  1714  for  writing  "a  seditious 
Mass.,  Md.,  Me.,  Mich.,  Minn.,  Miss.,  and  scandalous  libel"  (T.-L.  579). 
Mo  Mon.,  N.  D.,  Nev.,  N.  J.,  O.,  "  Mass.  1,  21;  Md.  3,  18;  Neb.  3, 
Okla.,  Ore.,  Pa.,  R.  I.,  S.  C,  S.  D.,  23;  N.  H.  1,  30;  Vt.  1,  14;  Wash.  2, 
Tenn.,  Tex.,  Utah,  Va.,  Wash.,  W.  Va.,    17;    Wis.  4,  6. 

Wis.,Wy.  Notes.  1.  So  in  U.  S.  1.5.  «  Ala.  56;  Ark.  5,  15;  Col.  5,  16; 
2.  But  there  are  often  special  provi-  Del.  2,  13 ;  Ga.  3,  7,  3 ;  Ida.  3,  7 ;  111. 
sions  for  finance  bills;  see  Arts.  30,  4,14;  Ind.  4,  8;  lo.  3,  11;  Kan.  2,22; 
31.  Ky.  43;   La.  28;  Me.  4,  3,  8;   Minn.  4, 

3  Ala.  56;  Ark.  5,  15;  Ariz.*  1118;  8;  Miss.  48;  Mo.  14,  12;  Mon.  5,  15; 
Col.  5,  16 ;  Ct.  3,  10 ;  Del.  2,  13 ;  Ga.  N.  D.  42 ;  Neb.  3.  12 ;  N.  J.  4,4,8;  O. 
3,7,3;  Ida.  3,  7;  111.4,14;  Ind.  4,  8;  2,12;  Okla.  5,23;  Ore.  4,  9  ;  Pa.  2, 15; 
Kan.  2,  22;  Ky.  43;  La.  28;  Md.  S.  C.  3,  14;  S.  D.  3,  11;  Tenn.  2,  13; 
Decln.  of  Rts.  10 ;  Me.  4,  3,  8 ;  Mich.  4,  Tex.  3,  14 ;  Utah  6,  8 ;  Va.  48 ;  W.  Va. 
7;  Minn.  4,  8;  Mo.  14,  12;  Mon.  5,  15;  6,  17;  Wy.  3,  16.  The  Protestation  of 
N.  D.  42;  N.  J.  4,  4,  8;  N.  Y.  3,  12;  1621  puts  the  right  in  those  words: 
O.  2,  12;  Okla.  5,  23;  Ore.  4,  9;  Pa.  2,  "And  that  every  member  of  the 
15;  R.  I.  4,  5;  S.  D.  3,  11 ;  Tex.  3,  21 ;  said  House  hath  like  freedom  from  all 
Tenn.  2,  13 ;  Utah,  6,  8 ;  Va.  48 ;  impeachment,  imprisonment,  and  mo- 
Wash.  2,  17 ;  W.  Va.  6,  17 ;  Wy.  3,  16.  testation  (other  than  by  the  censure  of 
This  is  an  old  English  constitutional  the  House  itself),  for  or  concerning  any 
right,  finally  definitely  established  in  speaking,  reasoning,  or  declaring  any 
Strode's  case  and  the  Stat.  4  Hen.  VIII.  matter  or  matters,  touching  the  Par- 
(Taylor,  I.  523).  It  would  probably  be  liament,  or  ParUament  business."  (T.- 
deenied  part  of  the  "unwritten  consti-  L.  419).  But  it  first  received  distinct 
tution"  where  not  guaranteed  here  or  legislative  recognition  under  James  I. 
in  §  60.  Freedom  of  speech  was  first  in  1604  (T.-L.  389).  Both  the  right  to 
definitely  asserted  by  Peter  Wentworth  freedom  of  speech  and  freedom  from 
against  Elizabeth  in  1576,  and  is  dis-  arrest  is  probably  inherent  in  the 
tinctly  claimed  as  the  privilege  of  Par-  Constitution  of  Parliament  and  coeval 
liament  in  the  Protestation  of  Decem-  with  the  first  existence  of  National 
ber  18,  1621  (T.-L.  419).     A  member   Councils  in  England  (T.-L.  259).    The 


PART   II]  POLITICAL   PROVISIONS  237 

Legislature.*  So  ten  days  before  and  after.^  In  some  they  are  so 
privileged  from  arrest  (except  as  above)  at  all  times  while  members 
of  the  Legislature.^  This  privilege  does  not,  in  five  States,  protect 
from  arrest  in  cases  of  violation  of  the  oath  of  office.'' 

In  two  they  cannot  be  arrested  or  held  to  bail  upon  mesne  process 
during  their  attendance  upon,  going  to,  or  returning  from  the  Legis- 
lature.^ And  it  is  further  provided,  in  a  few  States,  that  members  of 
the  Legislature  are  not  subject  to  any  civil  process  during  the  session 
of  the  Legislature  and  for  fifteen  days  before  such  session  and  after 
its  termination.®  Or  for  fifteen  days  before  the  session.''  So,  in  one, 
their  persons  are  free  from  arrest  and  their  property  from  attach- 
ment on  any  civil  action  during  the  session  and  for  two  days  before 
and  after  it.^  And  in  one  other,  they  are  free  from  arrest  in  civil 
process  during  the  session  and  for  four  days  before  and  after.® 

§  274.  Open  Sessions.  —  The  Constitutions  of  nearly  all  the 
States  provide  that  the  doors  of  each  house  of  the  Legislature  shall 
be  open,  or  that  the  proceedings  shall  be  public'''  Except  such  occa- 
sions as  may,  in  the  opinion  of  the  House,  require  secrecy,"  or  except 
the  senate  when  in  executive  session.*^  And  in  a  few  it  is  even  re- 
quired that  the  doors  of  either  house  should  be  open  when  sitting  as 

privilege    of    freedom    from    arrest    is  4,  12 ;    Minn.  4,  19 ;    Miss.  58 ;    Mo.  4, 

limited  to  civil  causes  in  England,  and  19;   Mon.  5,  13;   N.  D.  50;   Neb.  3,  8; 

it  is  not  available  in  case  of  attach-  Nev.  4,  15;    N.  H.  2,  8;    N.  Y.  3,  11; 

ment  for  refusing  to  obey  the  writ  of  O.  2,  13 ;   Ore.  4,  14 ;   Pa.  2,  13 ;   S.  C. 

habeas  corpus.     It  originally  extended  3,  23;   S.  D.  3,  15;   Tenn.  2,  22;   Tex. 

to  the  servants  or  household  of  a  mem-  3,  16;    Utah  6,  15;    Vt.  2,  13;    Wash. 

ber,  but  this  was  altered  by  statute  in  2,  11 ;  Wis.  4,  10;  Wy.  3,  14.     One  of 

1770  (T.-L.  263).  the   original  privileges    of  Parhament 

'  Cal.,  Miss.,  Mo.,  Neb.,  Utah,  Va.  was  secrecy  of  its  proceedings;  and  it 

^  S.  C,  W.  Va.  was   only  after    a  prolonged  struggle 

3  Ariz.*  1118;  Cal.  4,  11;  Mich.  4,  that  the  right  of  the  pubhc  to  know 

7 ;  Wash.  2,   16 ;  Wis.  4,   15.  what  their  representatives  were  doing 

*  Ala.,  Col.,  Mon.,  Pa.,  Wy.  in  Parliament  was  at  length  conceded. 

'  N.  H.  2,  20  (this  is    ambiguous.  The  Long  Parliament  in  1641  had  per- 

but    §  21   seems   to    confine  the  word  mitted  the  publication  of  its  proceed- 

"  arrest "  to  arrests  for  debt) ;   Mass.  ings,   but  prohibited   the  printing   of 

2,  1,  3,  10  (the  privilege  is  here  con-  speeches,  and  it  is  still   in  theory  a 

fined  to  the  House  of  Representatives,  breach  of  privilege  to  report  debates ; 

by  the  letter  of  the  Constitution).  but  no  action  for  Ubel  will  lie  for  so 

«  Ariz.*;  Cal.;  Ind. ;  Kan.;  Mich.;  doing  (T.-L.  579-587). 

Nev.  4,  11;  Ore.;  Va. ;  Wash.;  Wis.         "  Ala.,  Ark.,  Ariz.*,  Cal,  Col.,  Ct., 

'  Ind. ;  or  10  days  before  (Ida.).  Del.,  111.,  Ind.,  lo.,  Md.,  Mich.,  Min., 

«  R.  I.  4,  5.  Miss.,  Mo.,  Mon.,  N.  D.,  Neb.,  N.  H., 

«  Ct.  4,  10.  N.  Y.,  O.,  Ore.,  Pa.,  S.  C,  S.  D.,  Tenn., 

I'Ala.  57;  Ark.  5,  13  ;  Ariz.*  II13;  Vt.,  Wash.,  Wis.,  Wy.    "  In  the  opinion 

Cal.  4,  13;   Col.  5,  14;   Ct.  3,  11;   Del.  of  two  thirds  of  those  present"  (O.). 

2,  11 ;  Fla.  3,  13  ;  Ida.  3,  12  ;  111.  4,  10;       '^  Y\si.,  Nev.,  Tex.,  Utah. 

Ind.  4,  13 ;  lo.  3,  13 ;  Md.  3,  21 ;  Mich. 


238 


THE    STATE    CONSTITUTIONS 


[book    III 


committee  of  the  whol(\'  But  no  person  with  exception  of  members 
of  the  press  and  certain  olliccrs  can  be  achnitted  to  the  floor  of  either 
house  in  session. - 

§  27').  Journals.  —  The  Constitutions  of  all  the  States  but  Massa- 
chusetts provide  that  each  house  of  the  Lcf^^islature  shall  keep  a 
journal  of  its  proceedings;^  and,  in  all  these  States  except  Oregon, 
publish  the  same.  But,  in  one,  they  are  only  to  publish  it  when  re- 
quired by  one  fifth  of  the  members.^  They  need  not  print  such  parts 
as  may  require  secrecy.''  The  yeas  and  nays  of  the  members  of 
either  house  voting  in  elections,  must  in  some  States  be  always  en- 
tered on  the  journal,®  and  in  several  States  the  same  is  required  of 
other  votes  ^  (see  also  §  304).  So  in  others  at  the  request  of  any  one 
member,^  or  at  the  request  of  two  members  in  either  house,"  of  two 
in  the  senate,  or  five  in  the  house,^''  of  three  in  either  house,"  of  five  in 
either  house,  ^"  of  one  sixth  of  the  members  present  in  either  house,  ^^ 
of  one  fifth  of  the  members  present  in  either,'*  of  one  fifth  of  the  mem- 
bers elected  in  either,'^  of  one  tenth  of  those  present,'"  or,  in  one, 
whenever  the  Constitution  requires  a  two-thirds  vote.''  Any  member 
may  dissent  from  or  protest  against  any  act  or  proceeding  he  may  deem 
injurious  to  the  public,  and  have  the  reasons  for  his  dissent  entered 
on  the  journal.'^    So,  in  two,  any  tw^o  or  more  members  may  do  so.'" 

§  276.     Expulsion  of  Members,  etc.  —  By  the  Constitutions  of 


1  Ark.,  Col.,  Del.,  Ida.,  111.,  Md., 
Miss.,  Mon.,  Neb.,  Ore.,  Pa.,  S.  D., 
Tenn.,  Wy. 

2  Ala. 

3  Ala.  55;  Ark.  5,  12;  Ariz.*  1111; 
Cal.  4,  10 ;   Col.  5,  13 ;   Ct.  3,  9 ;    Del. 

2,  10;  Fla.  3,  12;  Ga.  3,  7,  4 ;  Ida.  3, 
13;  111.  4,  10;  Ind.  4,  12;  lo.  3,  9; 
Kan.  2,  10;  Ky.  40;  La.  30;  Md.  3, 
22 ;  Me.  4,3,5;  Mich.  4,  10 ;  Minn.  4, 
5;  Miss.  55;  Mo.  4,  42;  Mon.  5,  12; 
N.  C.  2,  16;  N.  D.  49;  Neb.  3,  8;  Nev. 
4,  14 ;  N.  H.  2,  23 ;  N.  J.  4,4,4;  N.  Y. 

3,  11 ;  O.  2,  9 ;  Okla.  5,  30 ;  Ore.  4,  13  ; 
Pa.  2,  12 ;  R.  I.  4,  8 ;  S.  C.  3,  22 ;  S.  D. 
3,  13 ;  Tenn.  2,  21 ;  Tex.  3,  12 ;  Utah 
0,  14 ;  Va.  49 ;  Vt.  2,  14  ;  Wash.  2,  11 ; 
W.  Va.  6,  41;  Wis.  4,  10;  Wy.  3,  13. 
See  in  U.  S.  Const.  1,  5. 

*  Ct. 

«  Ala.,  Ark.,  Ariz.*,  Col.,  Ct.,  Del., 
Me.,  Mich.,  Miss.,  Mon.,  Neb.,  N.  Y., 
Pa.,  S.  C,  S.  D.,  Tenn.,  Wash.,  Wis., 
Wy.  Nor  proceedings  of  executive 
sessions  (Utah). 


8  Ark.  4,  14  ;  Cal. ;  Kan. ;  lo.  3,  38 ; 
Minn. ;  Miss.  76;  Okla.  5,  31 ;  S.  C.  2, 
24 ;  S.  D.  3,  14 ;  Tenn.  4,  4 ;  Wash.  2, 
27 ;  W.  Va.  6,  44. 

'  Kan.,  Minn.,  S.  D.,  Tenn. 

«  Del,  N.  H.,  Vt. 

«  Col. ;  Ind. ;  lo.  3,  10 ;  Ky. ;  Mo. ; 
Mon.;  Neb.;   O. ;  Ore.;  Pa.;  Wy. 

'0   111. 

'1  Cal.,  Ida.,  Nev.,  Tex. 

'^  Ark.,  Fla.,  Md.,  Tenn.,  Utah.  Of 
five  in  the  Senate,  ten  in  the  house 
(S.  C). 

13  N.  D. ;  S.  D. ;  Wis.  4,  20. 

1*  Ct.;  Ga.  3,  7,  6;  La.  36;  Me.; 
N.  C;  2,26;  N.  J.;   R.  L;   Va. 

»«  Ariz.*,  Mich. 

»«  Ala.,  Miss.,  W.  Va. 

"  Ga.  3,  7,  21. 

'8  Ala.;  Ariz.*;  Ind.  4,  26;  lo. ; 
Kan.  2,  11 ;  Mich. ;  N.  C.  2,  17  ;  N.  H. ; 
O.  2,  10;  Ore.  4,  26;  S.  C. ;  Tenn.  2, 
27;  Vt. 

>"  111.;    Minn.  4,  16. 


PART   II]  POLITICAL  PROVISIONS  239 

most  States,  either  house  of  the  Legislature  may  expel  any  of  its 
members  by  a  vote  of  two  thirds  of  the  elected  members.'  So,  in  one, 
by  a  majority  vote  of  a  quorum.-  But  no  member  can,  in  many,  be 
expelled  a  second  time  for  the  same  cause ; ''  except  for  theft,  perjury, 
etc.*  Nor,  for  any  cause  known  to  his  constituents  before  his  elec- 
tion.^ The  reasons  for  the  expulsion  must,  in  two,  be  entered  on  the 
journal  with  the  names  of  the  members  voting.**  In  some,  a  member 
expelled  for  corruption  is  not  thereafter  eligible  for  either  house.^ 
Each  house  has,  in  most  States,  power  to  punish  its  members  for 
disorderly  conduct.^  And  in  many,  either  house  may  punish  any 
person  not  a  member  for  disorderly  or  contemptuous  conduct,  such 
punishment  not  to  extend  beyond  final  adjournment  of  the  session.^ 
It  may  punish  for  contempt  any  person  who  refuses  to  attend  as  a 
witness  or  produce  papers,  etc.,  before  the  Legislature,  either  house, 
or  a  committee  of  either,  or  to  testify  as  to  any  matter  which  may  be  a 
proper  subject  of  inquiry  by  the  Legislature.'"'  Such  punishment  is 
to  be  by  imprisonment.''  But  not  over  thirty  days.'^  Not  over  ten 
days.'^  Not  over  twenty-four  hours  at  a  time.'*  No  time  is  specified.'^ 

'  Ala.  53;  Ark.  5,  12;   Ariz.*  1110;  ^  Yt.  2,  9. 

Cal.  4,  9;   Col.  5,  12 ;   Ct.  3,  8;   Del.  2,  ^  Ma.,   Ark.,   Ariz.,    Col.,   Ct.,    111., 

9;    Fla.  3,  6;   Ga.  3,  7,  1 ;    Ida.  3,  11;  Ind.,  lo.,  Ky.,  Md.,  Me.,  Mich.,  Minn., 

111.  4,  9;    Ind.  2,  8;    lo.  3,  9;    Ky.  39;  Miss.,  Mo.,  Neb.,  O.,  Ore.,  Pa.,  R.  I., 

La.  25;  Md.  3,  19;  Me.  4,  3,  4;   Mich.  S.  C,  Tenn.,  Tex.,  Wash.,  W.  Va.,  Wis. 

4,  9;  Minn.  4,  4;  Miss.  55;  Mo.  4,  17;  *  Miss. 

Mon.  5,  11 ;  N.  D.  48;  Neb.  3,  7;  Nev.  «  Ariz.,  Mich.,  Vt. 

4,6:  N.  J.  4,4,3;  O.  2,  8 ;  Okla.  5,  30 ;  «  Ariz.,  Mich. 

Ore.  4,  15;  Pa.  2,  II;   R.I.  4,  7;  S.  C.  ^  Ala.  54;    Ark.;    Col.;    Mon.;    N. 

3,  12;  Tenn.  2,  12;  Tex.  3,  11;  Utah  D.  2,  38;   Okla.  5,  19;   Pa.;  Wy.    See 

6,  10;   Va.  47;  Wash.  2,  9;  W.  Va.  6,  §§  206,  210. 

25;  Wis.  4,8;  Wy.  3,  12.     In  many  of  «  Ala. ;   Ark. ;    Ariz.    *1120;    Col. 

these  States  (N.  J.,  Pa.,  O.,  Ind.,  lo.,  Ct. ;  Del.;  Fla.;  111.;  Ind.;  lo. ;  Ky. 

Minn.,    Va.,    Ky.,  Tenn.,   Ark.,    Tex.,  La. ;    Md. ;    Me. ;    Minn. ;    Miss. ;    Mo. 

Okla.,    R.    L,   Ore.,   Col.,   S.    C,    Ga.,  Mon.;   N.  D. ;   N.  H.  2,  21,  32;   Nev. 

Ala.,  Mon.,  N.  D.,  Wy.)  the  provision  N.  J.;    O. ;    Okla.;   Ore.;    Pa.;    R.  I. 

is  ambiguously  worded,  and  so  in  U.  S.  S.    C. ;     Tenn.;     Tex.;     L^tah;     Va. 

C.  1,5,  (2) ;  by  custom,  however,  "two-  Wash. ;    W.  Va. ;    Wis. ;    Wy. 

thirds  of  the  house  "  should  be  so  inter-  *  Ariz. ;  Fla.  3,  9 ;  Ga.  3,7,2;  Ky. ; 

preted.     In  a  few  it  is  definitely  stated  Mass.  2,  1,  3,  10-11 ;  Me.  4,  3,  6;  Miss, 

to  mean  members  present  (Fla.,  Miss.),  58;  N.  D. ;  Nev.  4,  7 ;   N.  H. ;   S.  C. 

and    such    is    general    parliamentary  3,  13;  W.  Va.  6,  26;  and  tliis  is  the 

law,  in  vetoes  (§  304)  and  impeach-  proper  rule, 

ments ;  and  so  by  the  practice  of  the  '"  Ky.  39 ;   Okla.  5,  42. 

U.    S.     Senate,    even    on     votes     of  "  Mass. ;  Me. ;  N.  D. ;  N.  H. ;  S.  C. ; 

expulsion.     It  is  one  of   the  inherent  Tenn.  2,  14. 

powers  of   a    Legislature   to   expel    a  *-  Mass.,  N.  D. 

member,  or  punish  any  person  for  con-  "  La.  26 ;    Md.  2,  23 ;    Mo. ;    N.  H, 

tempt,  but  in  the  Wilkes  case  it  was  "  111. ;     Ind.    4,    15 ;     Minn.    4,    18 ; 

established  that  a   member   thus  ex-  Neb. ;   Ore.  4,  16. 

pelled  is  not  thereby  disqualified.  "  Ala.,  Col.,  Mon.,  Wash.,  Wis.,  Wy. 


240  THE   STATE   CONSTITUTIONS  [BOOK   III 

Not  over  forty-ciglit  hours.'  Tlie  house  may  commit  any  person  to 
gaol  for  crime,  until  duly  released  by  law.^  And  it  docs  not  bar  a 
criminal  prosecution.^  Bribery  offered  or  ell'ected  of  a  member  of 
the  legislature  may  be  punished  bv  it  directly.''  For  punishment 
for  contempt,  see  above. 

§  277.  2'ime  of  Session.  —  There  is  in  three  States  a  general  pro- 
vision of  the  Constitution  that  the  Legislature  should  be  frequently 
convened.^  The  regular  session  of  the  Legislature  is,  in  six  States, 
once  each  year."  Li  most  States  and  most  territories  once  every  two 
years ;  thus  in  the  even  year,'  and  in  others  in  the  odd  year ;  ^  but 
often  there  are  adjourned  sessions  held  in  the  intervening  year;  in 
Pennsylvania,  such  adjourned  sessions  are,  however,  prohibited.  In 
a  few  Southern  States  only  once  in  four  years.  ^ 

Beginning  on  the  first  Monday  in  January ; '°  the  first  Tuesday ;  " 
the  first  Wednesday  in  January; '-  the  first  Monday  after  January  1,'^ 
the  Wednesday  after  the  first  Monday  in  January;  '*  the  second 
Wednesday  in  January ;  '^  the  first  Tuesday  after  the  first  Monday  in 
January;  '^  the  first  Thursday  after  the  first  Monday  in  January; " 
the  second  Tuesday  in  January;  '^  the  third  Monday  in  January;  " 
the  first  Wednesday  of  October ;  ^^  the  second  Monday  in  January ;  ^^ 
the  second  Monday  in  May ;  "  the  fourth  W^ednesday  in  June ;  ^^ 
the  Tuesday  after  first  Monday  in  April.-* 

Extra  sessions  on  extraordinary  occasions  may  be  convened  by  the 

1  Tex.  3,  15.  6,   2 ;    W.   Va.   6,  18 ;   Wash.   2,   12 ; 

'  Md.  3,  24.  1891,  Wis.  20*  ;  4,  11 ;  99*  Wy.  3,  .5. 

3  Mon.,  N.  D.,  Okla.,  Wy.  »  Ala.  48;  Miss.  36.     See  also  §  203. 

*  Ky.,  Mon.,  N.  D.,  Wy.  Beginning  in  1903  (Ala.)  1892  (Miss.) ; 

*  Mass.  1, 22 ;  Md.  Decln.  of  Rts.  12 ;  and  there  is  a  "  special  session  "  in  1894 
S.  C.  1,  3.  and  every  four  years  thereafter  (Miss.). 

*  Ga.  1891,  p.  55;    Mass.  Amt.  10;        '"  Mon.,  O.,  Tenn. 

N.  J.  4,  1,  3;  N.  Y.  10,  6;  R.  I.  Amt.  "  Del.,  Neb.,  Pa.,  R.  I. 

XL;  S.  C.  3,  9.  '^  Col.,    Mass.,  Me.,    Mich.,   N.   Y., 

7  Ky.  36;  La.  23;  Md.  3,  14;  Miss.  N.  H.     So,  after  Jan.  1,  Md.,  Mo. 

36;  Mon.  5,  6;  N.  D.  53,  55;  O.  2,  25;  "  Ida.,  Cal. 

Okla.  5,  27;  Va.  46;  Vt.  Amt.  24,  1.  "  Ct.,  111.,  N.  C. 

«  Ark.*  1875,  39,    1;  3520;    Ariz.*  '^  Va.,  W.  Va.,  Wis. 

39;  Cal.  4,  2;  Col.  5,  7;   Ct.  Amt.  27,  '"  Ky.,  Minn.,  N.   D.,   S.  D.,   Miss. 

1899,  p.  1153;  Del.  2,  4  ;  Fla.  3,  2  ;  Ida.  Okla. 

3,  8 ;  III.  4,  9 ;  Ind.  4,  9  ;  lo.  3,  2 ;  Amt.  "  Ind. 

1900;  Kan.  2,  25;  Me.  4,  3,  1;  Amt.  »«  Ala.,  Kan.,  N.  J.,  S.  C,  Wy.,  Tex. 
23 ;  Mich.  4,  33  ;  Minn.  3,  4 ;  4,  1 ;  Mo.        »«  Nev.,  N.  M.,*  Ariz.* 

4,  20 ;  N.  C.  2,  2  ;  Neb.  3,  3  &  7 ;  Nev.        ^o  yt. 

4,  2;  17,  12;  N.  H.  2,  32;  N.  Y.  1898,  ^i  Wash.,  Ark.,  lo.,  Ore.,  Utah. 

p.  1550;   N.  D.  55;  N.  M.,  U.  S.  1896,  ■'  La. 

252 ;  Ore.*  2371 ;    Pa.  2,  4 ;    S.  D.  3,  "  Ga.  1890,  p.  57. 

2  &  7;  Tenn.  2,  8;  Tex.  3,  5;  Utah  ^*  Fla. 


PART   II]  POLITICAL   PROVISIONS  241 

governor.*  But  in  the  newer  States  the  Legislature  so  called  may 
only  legislate  on  the  subject  specified  in  the  proclamation.^  So,  in 
two,  the  governor  may  call  the  Legislature  together  sooner  than  the 
time  to  which  it  was  adjourned  or  prorogued,  if  necessity  require.^ 

No  session  can  extend  beyond  the  term  of  forty,*  forty-five,^ 
fifty,*'  sixty,^  sixty-one,^  seventy-five,^  or  ninety  days.'"  It  must 
be  dissolved  by  the  governor  if  necessary,  seven  days  before  the  first 
Wednesday  of  January."  So,  in  others,  no  member  will  be  paid, 
or  paid  full  rates,  for  more  than  a  session  of  seventy-five  days,*^ 
of  seventy  days,*^  of  sixty  days,**  of  forty  days,*^  or  by  extra  ses- 
sion, thirty  days.*®  And  the  session  may  be  continued  for  thirty  davs 
beyond  the  time  so  above  limited,  upon  concurrence  of  two  thirds  " 
or  three  fifths  *^  of  the  members.  Unless  organization  is  effected 
within  four  days  after  a  quorum  is  secured,  they  get  no  pay.'^ 

§  278.  Adjournment.  —  By  the  Constitutions  of  all  States, 
neither  house  can  adjourn  without  the  consent  of  the  other  for  more 
than  three  days,-"  or  than  two  days,-*  nor  without  such  consent,  to 

1  Ala.  122 ;    Ark.    6,  19 ;    Cal.  5,  9 ;  »  Ind.  4,  29. 

Col.  4,  9 ;  Ct.  3,  2  ;  Del.  3,  16 ;   Fla.  4,  »  Col.  5,  6. 

8;    Ga.  5,  1,  13;    Ida.  4,  9;    111.  5,  8;  '"  Col.  Amt.  3;    Md.  3,   15;  Minn. 

Ind.;    Id.  4,  11;    Kan.  1,  5;    Ky.  80;  Amt.  1889,  1,  2. 

La.  75 ;    Mass.  Amt.   10 ;    Md.  2,   16 ;  **  N.  H.  2,  3. 

Me.  5,  1,  13;    Mich.  5,  7;    Minn.  5,  4 ;  '^  ^enn.  2,  23. 

Miss.  36;   Mo.  5,  9;   Mon.  7,  11 ;  N.  C.  '^  Mo.  4,  16. 

3,  9;  N.  D.  75;  Neb.  5,  8;-Nev.  5,  9;  "  Cal.  4,  2;    Del.  2,  15;  Ida.  3,  23; 

N.  H.  2,  49;    N.  J.  5,  6;    N.  Y.  4,  4;  Nev.  1891,  11;    R.  I.  Amt.  11  (1900, 

O.  3,  8 ;  Okla.  6,  7 ;  Ore.  5,  12 ;  Pa.  4,  p.  146) ;  Tex.  3,  24 ;   Va. 

12;   R.  I.  7,  7;   S.  C.  4,  16;  S.  D.  4,  4;  '^  Ore.  4,  29;   S.  C. 

Tenn.  3,  9 ;  Tex.  4,  8 ;   Utah  7,  6 ;   Va.  '«  La.,  Miss.,  Neb.,  S.  C,  Utah.,  Va. ; 

73;   Vt.  2,  11;  Wash.  3,  7;  W.  Va.  6,  or  twenty  (Fla.). 

19;    Wis.  5,  4;    Wy.  4,  4;    U.  S.  R.  "  Ga. 

S.  1923;    1874,  388  (Territories).    But  '«  Va. 

no  such  extraordinary  session  can  be  >"  Ida.  3,  10.    So,  only  $2  a  day  after 

called  in  the  Territories  without  the  ap-  60  days  (Okla.  5,  21). 

proval  of  the  President  of  the  United  ^o  ^i^.  58;  Ariz.*  1113;   Ark.  5,  28 

States ;    so,  it  must  be  on  appUcation  Cal.  4,  14 ;  Col.  5,  15 ;   Del.  2,  12 ;  Fla 

of    three  fifths  of    the    elected    mem-  3,13;   Ga.  3,  7,  24;   Ida.  3,  9;   Ind.  4 

bers,  except  on  extraordinary  occasions  10;    lo.  3,  14;   Ky.  41;    La.  35;    Md 

(W.  Va.)  or  with  advice  of  the  Council  3,  25;   Mich.  4,  12;   Minn.  4,  6;   Miss 

(N.  C).  57;   Mon.  5,  14;  N.  D.  51;   Neb.  3,  8 

*  Ida.,  Mon.,  Okla.,  Utah.  Nev.  4,  15;  N.  J.  4,  4,  5;  Okla.  5,  30 
»  Mass.  2,  2,  1,  5;   N.  H.  2,  49.  Ore.  4,  11;   Pa.  2,  14;   S.  C.  3,  21;   S 

*  Wy.  3,  6.  D.  3,  16;  Tenn.  2,  16;  Tex.  3,  17 
«  W.  Va.  6,  22.  Utah  6,  15;  Va.  46;  Vt.  Amt.  3 
«  Ala.;  Ga.  1891,  p.  55.  Wash.  2,  11;  W.  Va.  6,  23;  Wis.  A 
^  Ark.  5,  17;  Ariz.;*   Col.  Amt.   3;  10;  Wy.  3,  15  (Sundays  excepted,  O. 

Fla.  3,  2 ;  Ky.  42 ;    La.  23 ;    Mon.  5,    Kan. ;  Minn.). 

5;  N.  D.  56;  Nev.  4,  29;  S.  D.  3,  6;        ^i  m.  4^  10 ;  Kan.  2,  10;  Mass.  2,  1, 
Utah  6,  16;    Va.  46;    Wash.;    Terri- 
tories U.  S.  R.  S.  1852;    U.  S.  1881,  7. 

16 


2V2 


THE   STATE   CONSTITUTIOXS 


[book  hi 


any  Other  place  than  tliat  in  wliieli  it  may  be  sitting;  hut  in  one  it  may 
adjourn  to  such  other  place  by  concurrent  vote  of  two  thirds  present.' 
And  in  one  other,  every  adjournment  or  recess  taken  by  the  Legisla- 
ture for  more  than  three  days  has  the  effect  of  an  adjournment  sine 
dic.^ 

Adjournment  by  the  Governor.  —  In  most  States,  if  the  two  houses 
disagree  with  respect  to  the  time  of  adjournment,  the  governor  may 
adjourn  the  Legislature,  to  such  time  as  he  think  proper,  not 
beyond  the  first  day  of  the  next  regular  session,^  or  for  more  than 
ninety  days,*  or  such  time  as  he  think  proper,^  not  exceeding  four 
months.'     So,  if  either  house  remain  five  days  without  a  quorum.' 

§  279.  The  Place  of  Sessio)i.  — The  capital,  in  all  States.  But 
the  governor  may  convene  the  Legislature  elsewhere  in  case  of  war 
or  contagious  disease,  etc.,  etc.^ 

Article  28.    The  Executive 

§  280.  Duties  of  the  Governor.  —  It  is  in  most  States  declared 
to  be  the  duty  of  the  governor  to  take  care  that  the  laws  are  faithfully 
executed.*  He  is  generally,  at  the  commencement  of  each  session, 
or  from  time  to  time,  to  give  the  Legislature  information  "by  message 
of  the  condition  of  the  State,  and  recommend  such  measures  as  he 
deems  expedient.^"    He  must,  in  some  States,  present  estimates,  at  the 


2,  6;   2,  1,  3,  8;   Me.  4,  3,  12;   Mo.  4, 
23;  N.  H.  2,   18  &  35;  N.  Y.  3,   11; 

0.  2,  14;   R.  I.  4,  9. 
1  Md. 

^  Mo.  4,  21. 

3  Ark.  6,  20;  Cal.  5,  11 ;  Col.  4,  10 
Ct.  4,  7 ;  Fla.  4,  10 ;  111.  5,  9 ;   lo.  4,  13 
Kan.  1,  6;    Me.  5,  1,  13;    Miss.  121 
Neb.  5,  9;   Nev.  5,  11;   O.  3,  9.     But 
only    with    assent    two  thirds  elected 
members  each  house  :  Okla.  6,  14 ;  R. 

1.  7,  6;   S.  C.  4,  16;   Utah  7,  7. 

^  Del.  3,  16;  Mass.  2,  2,  1,  6;  N.  H. 

2.  42. 

*  Ga. ;    Vt. ;    Amt.  3. 

«  Ky.  81 ;   Pa.  4,  12. 

'  Kan.,  O.,  Minn.,  S.  C. 

«  Ala.  4,  8;  Ky.  36,  80;  La.  75; 
N.  D. ;   Okla.  6,  14  ;   S.  C.  3,  9. 

»  Ala.  120 ;  Ariz.*  1089 ;  Ark.  6,  7 ; 
Cal.  5,  7 ;  Col.  4,  2 ;  Ct.  4,  9 ;  Del.  3, 
17;  Fla.  4,  6;  Ga.  5,  1,  12;  Ida.  4,  5; 


111.  5,  6 ;  Ind.  5,  10 ;  lo.  4,  9 ;  Kan.  1, 
3;  Ky.  81;  La.  75;  Md.  2,  9;  Me.  5, 
1,  12;  Mich.  5,  6;  Minn.  5,  4;  Miss. 
113;  Mo.  5,  6;  Mon.  7,  5;  N.  C.  3,  7; 
N.  D.  75;  Neb.  5,  6;  Nev.  5,  7;  N.  J. 
5,  6 ;  N.  Y.  4,  4  ;  O.  3,  6 ;  Okla.  6,  8 ; 
Ore.  5,  10;  Pa.  4,  2 ;  R.  I.  7,  2;  S.  C. 
4,  12 ;  S.  D.  4,  4 ;  Tenn.  3,  10 ;  Terri- 
tories U.  S.  R.  S.  1841;  Tex.  4,  10; 
Utah  7,  5;    Va.  73;   Vt.  2,  11;  Wash. 

3,  5;    W.  Va.  7,  5;    Wis.  5,  4;   Wy. 

4,  4. 

1"  Ala.  123 ;  Ark.  6,  8 ;  Ariz.*  1091 ; 
Cal.  5,  10 ;  Col.  4,  8 ;  Ct.  4,  8 ;  Del.  3, 
15;  Fla.  4,  9;  Ga.  5,  1,  13;  Ida.  4,  8; 
111.5,7;  Ind.  5,  13;  lo.  4,  12;  Kan.  1, 
5;    Ky.  79;    La.  74;    Md.  2,  19;    Me. 

5,  1,  9;  Mich.  5,  8;  Minn.  5,  4;  Miss. 
122;  Mo.  5,  9;  Mon.  7,  10;  N.  C.  3,  5; 
N.  D.  75;  Neb.  5,  7;  Nev.  5,  10;  N. 
J.;  N.  Y.;  O.  3,  7 ;  Okla.  6,  9;  Ore. 
5,  11 ;   Pa.  4,  11 ;   S.  C.  4,  15 ;   S.  D.  4, 


TART    II] 


POLITICAL   TROVISIOXS 


243 


commencement  of  the  session,  to  the  Legislature  of  the  amount  of 
money  required  to  be  raised  by  taxation  for  all  State  purposes.^ 

§  2S1.  Powers  of  the  Governor.  —  By  the  Constitutions  of  most 
States,  the  governor  may  require  information  in  writing  from  officers 
of  the  executive  department  upon  any  subject  relating  to  the  duties  of 
their  respective  officers.^  So,  in  a  few,  from  all  officers  or  managers 
of  State  institutions.^  He  may,  in  some,  require  such  information  to 
be  given  under  oath.*  So,  in  two,  any  officer  making  a  false  report  is 
guilty  of  perjury.*  The  governor  and  council  have  a  negative  on 
each  other  in  nominations  and  appointments."  In  Massachusetts 
the  council  has  only  advisory  power,  except  that  it  succeeds  to  the 
duties  of  governor  if  the  offices  of  both  governor  and  lieutenant- 
governor  are  vacant.^ 

§  282.  The  Lieutenant-Governor,  by  the  Constitutions  of  most 
States,  succeeds  to  the  office  of  governor  upon  the  death,  impeach- 
ment, or  other  disability  of  the  latter.^  But  in  many  (where  there 
is  no  lieutenant-governor),  the  president  of  the  senate  succeeds  the 
governor.^  And,  after  him,  the  speaker  of  the  house. ^"^  In  others  the 
secretary  of  state  succeeds  (so  in  the  territories,  U.  S.  R.  S.  1843), 
and  after  him  the  president  of  the  senate."  Or,  in  Delaware,  the 
attorney-general,  then  the  president  of  the  senate  fro  tern-pore,  then 
the  speaker  of  the  house.  And  in  two,  the  Legislature,  in  case  of 
vacancy,  elects  a  governor.^'  So,  if  the  vacancy  occurs  in  the 
first  three  years  of  the  term,  there  is  an  election  by  the  people.^^ 


4 ;  Tenn.  3,  11 ;  Tex.  4,  9 ;  Utah ;  Va. ; 
Wash. 3, 6;  W.Va.7,6;  Wis.;  Wy.4,  4. 

1  Ala.;  Col.;  Ida.;  111.;  Mo.  5,  10; 
Mon. ;  Neb. ;  Tex. ;  W.  Va.  7,  6. 

2  Ala.  121;  Ariz.*  1088;  Ark.  6,  7 
Cal.  5,  6 ;  Col.  4,  8 ;  Ct.  4,  6 ;  Del.  3 
14;  Fla.  4,  5;  Ga.  5,  1,  18;  Ida.  4,  8 
III.  5,  21 ;  Ind.  5,  15 ;  lo.  4,  8 ;  Kan.  1 
4;  Ky.  78;  La.  73;  Me.  5,  1,  10 
Mich.  5,  5;  Minn.  5,  4;  Miss.  120 
Mo.  5,  22;  Mon.  7,  10;  N.  C.  3,  7 
Neb.  5,  22;  Nev.  5,  6;  O.  3,  6;  Okla, 
6,  9 ;  Ore.  5,  13 ;  Pa.  4,  10 ;  S.  C.  4,  14 
Tenn.  3,  8;  Tex.  4,  24  ;  Utah  7,  5;  Va. 
74;  Wash.  3,  5;  W.  Va.  6,  18. 

3  Ala.;  Col.;  Ida.;  Mass.  2,  2,  1, 
12;  Mo.;  Mon.;  Neb.;  N.  H.  2,  56; 
Utah. 

*  Ala.,  Col.,  Ida.,  III.,  Mon.,  Te.x. 
6  Ala.,  Mo. 

•  N.  H.  2,  46. 

'  Mass.  2,  2,  3,  5  &  6. 


«  Ala.  127;  Cal.  5,  16;  Col.  4,  13; 
Ct.  4,  14;  Del.  3,  20;  Ida.  4,  12;  111. 
5,  17 ;  Ind.  5,  10 ;  lo.  4,  17 ;  Kan.  1, 
11;  Ky.  84;  La.  65;  Mass.  2,  2,  2,  3; 
Mich.  5,  12;  Minn.  5,  6;  Miss.  131; 
Mo.  5,  16;  Mon.  7,  14  ;  N.  C.  3,  12  ;  N. 
D.  72;  Neb.  5,  16;  Nev.  5,  18;  N.  Y. 

4,  6 ;  O.  3,  15 ;  Okla.  6,  16 ;  Pa.  4,  13 ; 
R.  I.  7,  9;  1890,  p.  146;  S.  C.  4, 
9;  S.  D.  4,  6;  Tex.  4,  16;  Va.  78; 
Vt.  Amt.  8;  Wash.  3,  10;  Wis.  5,  7. 
See  also  §  202. 

»  Ala.;  Ark.  5,  18;  6,  12;  Del.  3, 
14;  Fla.  4,  19;  Ga.  5,  1,  8;  Md.  2, 
7;    Me.  5,  1,  14;  N.  H.  2,  48;   N.  J. 

5,  12;  Tenn.  3,  12;  W.  Va.  7,  16. 

"  Ala. ;  Ark.  6,  13  ;  Fla. ;  Ga. ;  Me. ; 
N.  J.;  Tenn.;   W.  Va. 

"  Del.;  N.  D. ;  Ore.  5,  8;  S.  D.; 
Utah  7,  11;   Wy.  4,  6. 

'■  Md.  2,  6 ;  W.  Va. 

"  W.  Va. 


244  THE   STATE  CONSTITUTIONS  [BOOK   III 

So,  if  ill  the  first  two  years  of  the  term.'  So,  if  a  year  of  the 
term  remains  unexpired,^    So,  if  sixty  days  before  the  next  election.* 

The  Heutenant-governor  is  in  most  States  president  of  the  senate, 
with  a  casting  vote.'  And  in  one,  lie  is  a  nieinber  of  the  council,  and 
president  thereof  when  the  governor's  chair  is  vacant.''  But  he  cannot 
grant  pardons  or  reprieves,  nor  can  he  command  the  militia,  except 
as  lieutenant-general,  but  by  advice  of  the  senate." 

Upon  the  death,  inipeachinent,  or  inability  of  the  lieutenant- 
governor  or  secretary  of  State  also,  the  temporary  president  of  the 
senate  is,  in  most  States,  governor  pro  tempore.''  But  in  one,  the 
council,  or  a  majority  of  it,  has  the  power  of  the  governor.^  And  in 
others,  the  secretary  of  state  succeeds.^  And  so,  by  succession,  in 
several,  the  speaker  of  the  house  succeeds  the  president  of  the 
senate.'"  And  the  secretary  of  state  the  speaker."  In  Rhode 
Island  the  Legislature  elects  from  the  persons  having  the  highest 
votes,  as  in  §  232. '^ 

Article  29.    The  INIilitia 

§  290.  General  Provisions.  —  In  four  State  Constitutions  it  is 
declared  that  every  member  of  society  is  bound  to  yield  his  personal 
service,  or  an  equivalent  thereto,  to  the  State  for  the  defence  of  life, 
liberty,  and  property.'^  But  in  many  States  it  is  declared  that  a 
person  conscientiously  opposed  to  bearing  arms  will  not  be  com- 
pelled thereto  if  he  will  pay  an  equivalent.'*    But  in  a  few  it  seems 

1  Ky.  85.  N.  D.  31;   Neb.  5,  18;   Nev. ;   N.  Y. ; 

2  Ark.  6,  14.  O.  3,  17;  Okla.  6,  15;  Pa.  4,  14;  R.  I. 

3  Ala.  7,  10;    S.  C. ;    Tex.  4,  17;    Utah. 
*  Ala.  117 ;  Cal.  5,  15 ;  1897,  p.  646;         »  Mass.  2,  2,  2,  6. 

Col.  4,  14 ;   Ct.  4,  13  ;    Del.  3,  19 ;    Ida.  »  Ky.  87 ;  La. ;  N.  D. ;  S.  D. ;  Wash. ; 

4,13;   111.5,18;   Ind.  5,  21 ;   lo.  4,  18;  Wis. 

Kan.  1,  12;    Ky.  83;    La.  67;    Mich.  '"  Cal.,    Col.,    Ida.,    111.,    lo.,    Kan., 

5,  14;   Minn.  5,  6;    Miss.  129;    Mo.  5,  Miss.,  Mo.,  Mon.,  Neb.,  N.  H.,  N.  Y., 

15 ;  Mon.  7,  15 ;  N.  C.  3,  11 ;  N.  D.  77  ;  O.,  Okla. 

Neb.  5,  17 ;  Nev.  5,  17 ;  N.  Y.  4,  7  ;  O.  »  Del. 

3,  16;   Okla.  6,  15;   Pa.  4,  4;    S.  C.  4,  >2  j^   j  ^^^   n 

5  &  6;   S.  D.  4,  7;   Tex.  4,  16;    Va.  »  Mass.  1,  10;   N.  H.  1,  12;   Ore.  1, 

79;    Vt.  Amt.  6;    Wash.  3,  16;    Wis.  27;    Vt.  1,  9. 

5,  8.  "  Col.  17,  5;   Ida.  14,  1;  lU.  12,  6 

«  Mass.  2,  2,  2,  2.  Ind.  12,   6 ;    lo.  6,  2 ;    Ky.   220 ;    La, 

«  Vt.  300 ;   Me.  7,  5 ;   Mo.  13,  1 ;  N.  D.  188 

'  Cal.;   Ct.  4,  15;  Col.  4,  15;  Ida.  N.  H.  1,  13;   Ore.  10,  2;   S.  C.  13,  1 

4,  14;   111.  5,  19;  lo.  4,  19;  Kan.  1,  13;  Tenn.  1,  28;  8,  3;  Tex.  16,  47;    Vt. 
Ky.  85;  La.  68;    Mich.  5,  13;  Minn.;  Wash.    10,    6. 

Miss.;  Mo.  5,  17;  Mon.  7,  16;  N.  C; 


PART  II]  POLITICAL   PROVISIONS  245 

that  he  may  be  compelled  to  bear  arms  in  time  of  war,  as  the  exemp- 
tion applies  only  to  militia  duty  in  time  of  peacc.^  "  Upon  such  terms 
as  may  be  prescribed  by  law,"  he  will  be  relieved  from  such  service.^ 
And  in  Maine,  Quakers  and  Shakers  and  clergymen  are  excused. 
In  several,  the  militia  is  declared  the  proper  and  natural  defence  of 
a  free  State.^ 

§  291.  The  Militia  consists  in  most  States  of  all  able-bodied 
male  persons  (citizens,  lo.,  Mich.,  or  inhabitants,  Fla.,  N.  Y.,  and 
Ore.)  between  the  ages  of  eighteen  and  forty-five,*  twenty-one  and 
forty-five,^  or  twenty-one  and  forty."  In  a  few,  they  must  in  addition 
be  white.''  In  others,  the  whole  matter  (otherwise)  is  left  to  the 
Legislature  to  be  determined  by  law.^  But  there  must  always  be 
10,000  men  fully  equipped,  disciplined  and  ready  for  action.®  The 
Legislature  shall  provide  for  maintaining  an  organized  militia  con- 
forming as  nearly  as  practicable  to  the  regulation  for  the  government 
of  the  United  States  army.^**  "Not  incompatible  with  the  Constitu- 
tion or  laws  of  the  United  States."  " 

§  292.  Civil  Power.  —  The  military  is,  in  all  States  except  New 
York,  declared  forever  subordinate  to  the  civil  power.*^ 

»  Col. ;  Ida.  15,  7  ;  111. ;  lo. ;  N.  D. ;  "  N.  D.  189 ;  Wash.  10,  2. 

Ore. ;   S.  D. ;  Wash.  10,  6.  "  Ala.  27 ;  Ark.  2,  27  ;  Ariz.*  Bill  of 

•  Fla.  14,  1;  Kan.  8,  1;  Mich.  17,  Rights  3;  Cal.  1,  12;  Col.  2,  22;  Ct. 
1 ;  Mo. ;  N.  C.  12,  1 ;  N.  Y.  11,  1 ;  Wy.  1,  18;  Del.  1,  17  ;  Fla.  Decln.  Rts.  21 ; 
17,  1.  Ga.  1,  1,  19;    Ida.  1,  12;    111.  2,  15; 

^    Ga.  10,  1,  1;    La.  6;    Md.  Decln.  Ind.   1,  33;    lo.   1,   14;    Kan.  Bill  of 

of  Rts.  28;   N.  C.  1,  24;   N.  H.  1,  24;  Rts.  4;    Ky.  222;    La.  14,  173;    Mass. 

S.  C.  1,26;  Tenn.  1,24;  Va.  13.  1,  17;  Md.  Decln.  of  Rts.  30;  Me.  1 

*    Ala.;  Ark.  11,  1;  Col.  17,  1;  Fla.  17;  Mich.  18,  8;  Minn.  1,  14;  Miss.  9 

14,  1;    Ida.  14,  1;    111.  12,  1;    Ind.  12,  Mo.  2,  27;    Mon.  3,  22;    N.  C.  1,  24 

1;    lo.  6,   1;    Ky.  219;   Mich.    17,   1;  N.  D.   12;    Neb.   1,  17;    Nev.  1,  11 

Miss.   214;    Mo.   13,   1;    Mon.   14,   1;  N.  H.  1,  26;  N.  J.  1,  12;  N.  M.*  1851 

N.  D.  188;   O.  9,  1;   Ore.  10,  1;    S.  C.  July  12,  §  16;    O.  1,  4;    Okla.  2,  14 

13,  1 ;  S.  D.  15,  1 ;  Utah  15,  1 ;  Wash.  Ore.  1,  27 ;  Pa.  1,  22  ;  R.  I.  1,  18 ;  S.  C 

10,  1;  Wy.  17,  1.  1,  26;   S.  D.  6,  16;   Tenn.  1,  24;  Tex 

«  Kan.  8,  1.  1,  24;   Utah  1,  20;  Va.  13;  Vt.  1,  16 

•  N.  C.  12,  1.  Wash.  1,  18;  W.  Va.  3,  12;  Wis.  1,  20 
^  Ind.,  Kan.,  O.  Wy.  1,  25.   Compare  Eng.  Stat.  1  W.  & 

M.  Sess.  2 ;  also  Declaration  of  Inde- 
pendence. See  §  240,  note.  Martial 
law  and  courts  martial  are  no  part  of 
the  common  law  of  England.  It  was 
complained  of  in  the  Petition  of  Riglit, 
but  is  not  expressly  forbidden  in  the 


Ala.  271 ;  Cal.  8,  1 ;  Ga.  10,  1,  1 
Ida.  14,  2;  Ky.  220;  La.;  Md.  9,  1 
Minn.  12,  1;  Mon.  14,  1;  Miss.  215 
Neb.  13,  1;  Nev.  12,  1;  N.  D.  190 
N.  J.  7,  1,  1 ;  N.  Y.  11,  2  ;  Okla.  5,  40 
Pa.  11,  1;    S.  D.  15,  2;   Te.x.  16,  46 


Wis.  4,  29.  Bill  of  Rights.      In  this  country  the 

"  N.  Y.  11,  3.  Federal  Constitution  makes  no  specific 

*"  Ida.  14,  2;    Ky.   221;    Mon.   14,  mention  of  it,  but  it  is  doubtless  for- 

2 ;    S.  D.  15,  2-3 ;    Utah  15,  2 ;   Wy.  bidden  by  the  ordinary  constitutional 

17,  2.  provisions  requiring  due  process  of  law 


246  TIIF,   STATE   CONSTITUTIONS  [BOOK   III 

§  293.  Martial  Law  is  in  one  State  declared  inconsistent  witli  a 
free  government  and  is  not  "confided"  to  any  department  of  the 
State  government.'  And  in  several,  no  person  can  be  subjected  to 
martial  law  except  the  army,  navy,  or  mihtia  in  actual  service.-  In 
one,  martial  law  is  to  be  employed  only  when  occasion  necessarily 
requires  it.^  But  in  three,  it  seems  any  person  may  be  subjected  to 
martial  law  by  authority  of  the  Legislature.'' 

§  294.  Standing  Armies}  —  The  Constitutions  of  most  of  the 
States  provide  that  standing  armies  are  dangerous  to  liberty  and 
ought  not  to  be  kept  up  in  time  of  peace."  And  in  time  of  war  the 
appropriation  for  such  army  cannot  be  for  a  longer  term  than  two 
years,'  or  even  one  year.^  But  in  several,  it  seems  standing  armies 
may  be  kept  up  at  any  time  with  the  authority  of  the  Legislature.' 

§  295.  Billeting  Soldicrs.^^  —  By  the  Constitutions  of  all  but 
Vermont,  New  York,  Wisconsin,  Virginia,  and  Mississippi,  no 
soldier  can  be  quartered  in  any  house  without  the  consent  of  the 
owner,  except  in  time  of  war;  and  then  only  (in  all  these  States 
except  Louisiana)  in  the  manner  by  law  prescribed." 

(Amts.  5  and  14).  When  so-called  pline,  wliich  are  also  contrary  to  the 
martial  law  is  enforced  at  the  will  of  common  law.  Hence  the  Parliament 
the  commanding  officer  it  will  not,  in  has  to  be  summoned  once  a  year." 
ordinary  cases,  prevent  the  person  tried  Anson,  Law  and  Customs  of  the  Const, 
from  being  tried  again  at  the  common  1,248.  Henry  II.  promised  never  to  em- 
law  ;  nor  uill  it  exempt  the  officers  or  ploy  mercenary  soldiers  in  England, 
soldiers  carrying  out  orders  under  mar-  though  he  kept  a  force  of  10,000 
tial  law  from  being  responsible  for  their  Braban^ons  and  many  Welsh  and  Gal- 
acts  in  the  ordinary  manner.  At  most  wegians.  He  faithfully  kept  his  prom- 
it  is  lawful  in  the  enemy's  country  ise,  but  John's  mercenary  army,  though 
in  time  of  actual  warfare.  There  is,  raised  to  repel  the  French  invasion  of 
however,  a  New  York  decision  to  the  1213,  was  one  of  the  greatest  occasions 
effect  that  in  that  state  a  statute  of  his  downfall.  (1  Stubbs,  588.) 
pro\nding  for  courts  martial  is  con-  '  Ark.  2,  27;  Cal.  1,  12;  lo.  1,  14; 
stitutional.  It  will  be  noted  that  the  Kan.  Bill  of  Rts.  4;  Ky.  22;  Mass.  1, 
New  York  Constitution  alone  has  no  17;  Me.  1,  17;  Minn.  1,  14;  N.  C.  1, 
provision  that  the  mihtary  is  forever  24;  N.  D.  12;  Nev.  1,  11;  N.  H.  1,2.5; 
subordinate  to  the  civil  power  (see  0.1,4;  Pa.  1,22;  S.C.I,  26;  Tenn. 
§292).    People  V.  Daniel,  50  N.  Y.  274.  1,  24;    Va.   13;   Vt.   1,  16;    Wash.   1, 

'  Tenn.  1,  25.  31 ;  W.  Va.  3,  12. 

=>  Mass.  1,  28;    Md.  Decln.  of  Rts.         '  lo.,  Nev. 
32;  Me.   1,  14;  N.  H.  1,  34;  S.  C.  1,         »  Ala.  27. 

26 ;  Tenn.  1,  25 ;   Vt.  1,  17 ;  W.  Va.  3,        »  Ala. ;     Del. ;     Ky. ;     Mass. ;     Ud. 

12.  Decln.  of  Rts.  29 ;    Me. ;    N.  H. ;    Pa. ; 

3  R.  I.  1,  18.  S.  C. 

*  Mass. ;   N.  H. ;   S.  C.  ">  U.  S.  C.  Amt.  3. 

«  "  The  existence  of  a  standing  army        "  Ala.  28 ;  Ark.  2,  27 ;   Ariz.  B.  Rts. 

in  time  of  peace  is  contrary  to  law.    It  4;    Cal.  1,  12;    Col.  2,  22;    Ct.  1,   19; 

is  legahzed  each  year  for  a  year  by  the  Del.  1,  18;    Fla.  16,  23;    Ga.  1,  1,  19; 

Army  Act;  as  are  the  punishments  and  Ida.  1,12;   111.2,16;   Ind.  1,34;  lo.  1, 

procedure  for  the  maintenance  of  disci-  15 ;   Kan.  Bill  of  Rts.  14 ;  Ky.  22 ;  La. 


PART   II] 


POLITICAL   PROVISIONS 


247 


§  296.  Privileges  of  Militia.  —  Members  of  the  militia  are,  by 
the  Constitutions  of  several  States  privileged  from  arrest  during 
their  attendance  at  musters  and  elections  and  in  going  to  and  return- 
ing from  them,  except  in  cases  of  treason,  felony,  and  breach  of  the 
peace.^  And  in  several,  no  person  can  be  imprisoned  for  a  militia 
fine  in  time  of  peace.^ 

§  297.  The  Governor  is  Commander-in-Chief  of  the  militia 
(and  army  and  navy  of  the  State),  by  the  Constitutions  of  all  States.^ 
And  so,  in  the  territories,  by  U.  S.  R.  S.,  1841.  Except,  in  many, 
when  they  are  called  into  the  United  States  service.^  But  he  is  not, 
in  a  few,  to  command  in  person  in  the  field  unless  he  is  advised  to 
do  so  by  resolution  of  the  Legislature.^  And  he  is  not,  without 
legislative  authority  or  their  consent,  to  lead  or  order  the  militia  out 
of  the  State.''  Officers  are  to  be  appointed  as  by  law.''  Captains  and 
subalterns  are  to  be  nominated  by  the  field  officers  and  appointed  by 
the  governor  and  council.*  No  officer  can  be  removed  except  by 
court  martial  or  upon  address  of  both  houses  to  the  governor." 
The  officers  appoint  their  respective  aids  and  the  captains  and  sub- 
alterns their  non-coms.'" 

§  298.  Purposes  of  the  Militia.  —  The  governor  may,  by  the 
Constitutions  of  most  States,  call  out  the  militia  to  execute  the  laws, 
to  suppress  insurrection,  and  to  repel  invasion."     So,  in  Louisiana, 


173 ;  Mass.  1,  27 ;  Md.  Decln.  of  Rts. 
31 ;  Me.  1,  18 ;  Mich.  18,  9 ;  Mo.  2,  27  ; 
Mon.  3,  22;  N.  C.  1,  36;  N.  D.  12; 
Neb.  1,  18;  Nev.  1,  12;  N.  H.  1,  27; 
N.  J.  1,  13;  O.  1,  13;  Okla.  2,  14; 
Ore.  1,  28 ;  Pa.  1,  23 ;  R.  I.  1,  19  ;  S.  C. 
1,  26;  S.  D.  6,  16;  Tenn.  1,  27;  Tex. 
1,  25;  Utah  1,  20;  Wash.  1,  31;  W. 
Va.  3,  12;  Wy.  1,  25. 

1  Ala.  275;  Ark.  11,  3;  111.  12,  4; 
Miss.  220;  Mo.  13,  5;  N.  D.  193;  S.  C. 
13,2;   S.  D.  15,  5;  Wash.  10,5. 

-  Cal.  1,  15;  lo.  1,  19;  Mich.  6,  33; 
Nev.  1,  14;  N.  J.  1,  17. 

"  Ala.  131;  Ark.  6,  6;  Cal.  5,  5; 
Col.  4,  5;  Ct.  4,  5;  Del.  3,  8;  Fla.  4, 
4;  Ga.  5,  1,  11;  Ida.  4,  4;  111.  5,  14; 
Ind.  5,  12 ;  lo.  4,  7 ;  Kan.  8,  4  ;  Ky.  75 ; 
La.  183,  73  ;  Mass.  2,  2,1,7;  Md.  2,  8 ; 
Me.  5,  1,  7;  Mich.  5,  4;  Minn.  5,  4; 
Miss.  119,  219;  Mo.  5,  7;  Mon.  7,  6; 
N.  C.  3,  8 ;  N.  D.  75 ;  Neb.  5,  14  ;  Nev. 
5,5;  N.  H.  2,  50;  N.J.  5,  6;  N.  Y.  11, 
6 ;  O.  3,  10 ;  Okla.  6,  6 ;  Ore.  5,  9  ;  Pa. 
4,  7;   R.  I.  7,  3;   S.  C.  4,  10;   S.  D.  4, 


4  ;  Tenn.  3,  5  ;  Tex.  4,  7 ;  Utah  7,  4 ; 
Va.  73  ;  Vt.  2,  11 ;  Wash.  3,  8 ;  W.  Va. 
7,  12;  Wis.  5,  4;  Wy.  4,  4;  17,  5. 

*  Ala.,  Ark.,  Col.,  Ct.,  Del.,  Fla., 
Ida.,  111.,  Ky.,  La.,  Me.,  Miss.,  Mo., 
Mon.,  N.  C,  N.  D.,  Neb.,  Nev.,  O., 
Okla.,  Pa.,  R.  I.,  S.  C,  S.  D.,  Tenn., 
Tex.,  Utah,  Wash.,  W.  Va.,  Wy. 

«  Ala.,  Ky.,  Md.,  Mo. 

*  Mass.,  Me.,  Mon.,  N.  H. 

'  Ida.;  N.  D.  191;  Wash.  10,  2; 
Wy.  17,  3.    Or  elected  (Ala.  271). 

«  N.  H.  2,  47. 

9  N.  H.  2,  52. 

"  N.  H.  2,  53. 

"  Ala.  131;  Ark.  11,  4;  Cal.  8,  1; 
Col.  4,  5;  Fla.  14,  4;  Ida.  4,  4;  111.  5, 
14 ;  Ind.  5,  12 ;  Kan.  8,  4 ;  La.  301 ; 
Md.  2,  8 ;  Mich.  5,  4  ;  Minn.  5,  4  ;  Miss. 
217  ;  Mo.  5,  7  ;  Mon.  7,  6 ;  N.  C.  12,  3  ; 
N.  D. ;  Neb.  5,  14  ;  Nev.  12,  2 ;  Okla. 
6,  6;  Ore.  5,  9;  S.  C.  13,  3;  S.  D. ; 
Tex.  4,  7;  Utah;  Va.  73;  Wash.  10, 
2;  W.  Va.  7,  12;  Wy.  17,5. 


248  THE   STATE  CONSTITUTIONS  [BOOK   III 

"when  the  pubh'c  service  requires  it."  But  so,  in  three,  only  when 
the  Legishiture  deehire  l)y  law  that  the  puhHc  safety  re(|uires  it.' 
So,  in  Tennessee,  only  witii  special  enactuient  of  the  Legislature; 
or  in  Texas,  to  protect  the  frontier,  or  the  puhlic  health.-  And, 
in  five,  to  preserve  the  public  peace.^ 

§  299.  Miscellaneous  Provisions.  —  (See  also  §  63.)  The  Cali- 
fornia Constitution  provides  that  all  military  organizations  receiving 
State  support  should  carry  under  arms  no  device  or  flag  of  any 
nation  other  than  the  United  States  or  State  flag.^  The  legislative 
assembly  shall  provide  by  law  for  the  establishment  of  volunteer 
organizations  of  the  several  arms  of  the  service,  which  shall  be 
classed  as  active  militia,  and  no  other  organized  body  of  men  shall 
be  permitted  to  perform  military  duty  in  this  State,  except  the 
army  of  the  United  States,  without  the  proclamation  of  the  governor 
of  the  State.^ 

«  Mass.  2, 2, 1,  7 ;  N.  H.  2,  50 ;  Tenn.        ^  Ark.,  Fla.,  La.,  S.  C,  Wy. 
3,  5.  "  Cal.  8,  2;   Ida.  14,  5;   Wy.  17,  4. 

2  Okla.  «  N.  D.  190. 


PART   III] 


LEGISLATION 


249 


Paet  III 

LEGISLATION 
Article  30.    Process  of  Legislation 

§  300.  Bills.  —  (See  also  §§  201,  310.)  By  the  Constitutions  of 
many  States,  no  law  can  be  passed  except  by  bill ;  ^  and  bills  may 
generally  originate  in  either  house  of  the  Legislature,^  but  they  may 
be  amended,  altered,  or  rejected  in  the  other  house.^  (The  same  is 
probably  implied  in  all  other  States;  see  §  303.)  But  not,  in  some 
States,  so  as  to  change  the  original  purpose  of  the  bill,''  nor  upon  or 
after  the  last  reading.^ 

§  301.  Form  of  Bills.  —  The  Constitutions  of  most  States  pre- 
scribe that  no  law  shall  relate  to  more  than  one  subject,  and  that 
this  shall  be  expressed  in  the  title,"  indicating  clearly  the  subject 
matter.^    Except,  in  a  few,  general  appropriation  bills,**  and  in  two, 


>  Ala.  61;    Ark.  5,  21;    Cal.  4,  15; 
Col.  5,  17 ;   Ida.  3,  15 ;   Ind.  4,  1 ;   Kan. 

2,  20 ;  Md.  3,  29  ;  Miss.  60 ;  Mo.  4,  25 ; 
Mon.  5,  19;  N.  D.  58;  Neb.  3,  10; 
Nev.  4,  23;  N.  Y.  3,  14;  Pa.  3,  1; 
Tex.  3,  30;  Va.  50;  Wash.  2,  18; 
Wis.  4,  17 ;  Wy.  3,  20.  After  the  Con- 
quest EngUsh  legislation  was  based  on 
petitions  addressed  to  the  king  by  the 
House  of  Commons ;  this  resulted  in 
their  not  always  getting  the  legislation 
they  desired,  so  that  it  soon  became 
the  practice  to  accompany  the  petition 
with  the  precise  law  asked  for.  Later, 
laws  were  made  by  Ordinances  or  Orders 
in  Council  without  the  consent  of 
Parliament.     (T.-L.  p.  249.) 

■  Ariz.*    1114;     Cal;     Fla.   3,    14; 
Ida.  3,  14 ;    111.  4,  12 ;    Ind.  4,  17 ;    lo. 

3,  15 ;  Kan.  2,  12 ;  Md.  3,  27  ;  Me.  4,  3, 
9;  Mich.  4,  13;  Miss.  59;  Mo.  4,  26; 
N.  D.  57 ;  Neb.  3,  9 ;  Nev.  4,  16 ;  N.  Y. 
3,13;  0.2,15;  Ore.  4,  18;  S.  C.  3,  15; 
S.  D.  3,  20;  Tenn.  2,  17;  Tex.  3,  31; 
Va.;     W.    Va.    6,   28;    Vt.    Amt.   3; 


Wash.  2,  20 ;  Wis.  4,  19.  See,  however, 
§309. 

3  Ala.,  Ark.,  Cal.,  Col.,  Fla.,  Ida., 
111.,  Ind.,  lo.,  Kan.,  Md.,  Me.,  Miss., 
Mo.,  N.  D.,  Neb.,  Nev.,  N.  Y.,  O.,  Ore., 
Pa.,  S.  C,  S.  D.,  Tenn.,  Tex.,  Va., 
Wash.,  W.  Va.,  Wis. 

*  Ala. ;  Ark. ;  Col. ;  Mo. ;  N.  D.  58 ; 
Pa. ;  Tex. ;  Wash.  2,  38 ;    Wy.  3,  20. 

«  N.  Y. 

«  Ala.  45;  Cal.  4,  24;  Col.  5,  21; 
Del.  2,  16;  Fla.  3,  16;  Ga.  3,  7,  8; 
Ida.  3,  16 ;  111.  4,  13 ;  Ind.  4,  19 ;  lo. 
3,  29;  Kan.  2,  16;  Ky.  51;  La.  31; 
Md.  3,  29 ;  Mich.  4,  20 ;  Minn.  4,  27 ; 
Mo.  4.  28;  Mon.  5,  23;  N.  D.  61 ;  Neb. 
3,  11;  Nev.  4,  17;  N.  J.  4,  7,  4;  O.  3, 
16;  Okla.  5,  57;  Ore.  4,  20 ;  Pa.  3,  3; 
S.  C.  3,  17;  S.  D.  3,  21;  Tenn.  2,  17; 
Tex.  3,  35;  Utah  6,  23  ;  Va.  52;  Wash. 
2,  19;  W.  Va.  6,30;   Wy.  3,  24. 

'  Miss.  71. 

»  Ala.,  Col.,  Del.,  Mo.,  Mon.,  Okla., 
Pa.,  Te.x.,  Utah,  Wy.    See  §  311. 


250 


THE    STATE   CONSTITUTIONS 


[book   III 


the  principal  provision  only  applies  to  private  or  local  hills.'  But,  in 
several  States,  if  there  are  other  subjects  in  the  hill  not  embraced  in 
the  title,  the  bill  is  nevertheless  f^ood  pro  tanto  as  to  those  that  are.- 
By  the  Constitutions  ot"  three  States,  every  act  is  to  be  plainly  worded, 
avoiding,  so  far  as  possible,  the  use  of  technical  terms.^  And  by 
that  of  Louisiana,  the  Legislature  shall  never  adopt  any  system  or 
code  of  laws  by  general  reference  to  such  cotle,  but  shall  in  all  cases 
recite  at  length  the  provisions  enacted  (compare  §  SO?).*  Every 
statute  is  a  public  law  unless  otherwise  declared.^ 

§  302.  Passage  of  Bills.^  —  By  the  Constitutions  of  some  States, 
no  bill  shall  be  considered  for  passage  unless  it  has  first  been  re- 
ferred to  a  committeee  and  reported  therefrom.^  And  in  Texas,  no 
bill  shall  be  passed  unless  so  referred  and  reported  at  least  three 
days  before  the  final  adjournment  of  the  Legislature.  Except  if 
the  committee  refuses  or  fails  to  report  a  bill  "within  a  reasonable 
time"  any  member  may  call  it  up.^ 

Reading  of  Bills.  —  Every  bill  must  ordinarily,  by  the  Constitu- 
tions of  most  States,  be  read  by  sections  on  three  different  days  in 
each  house  of  the  Legislature.^    But  in  case  of  urgency,  either  house 


1  N.  Y.  3,  16;  Wis.  4,  18. 
-  Cal.,  Col.,  Ida.,  III.,  Ind.,  lo.,  Mon., 
N.  D.,  Ore.,  Tex.,  W.  Va.,  Wy. 

3  Ida.  3,  17;   Ind.  4,  20;  Ore.  4,  21. 

*  La.  33. 

«  Del.  2,  23. 

*  While  these  directions  as  to  the 
method  of  passing  laws  are  manda- 
tory in  form,  they  are  binding  only  on 
the  conscience  of  the  legislative  body. 
The  courts,  in  the  v«ry  nature  of  things, 
are  obliged  to  accept  the  enactment  of 
the  law  as  conclusive  proof  of  the  com- 
pliance of  the  Legislature  with  the 
necessary  formalities,  and  cannot  con- 
sider questions  of  fact  relative  to  the 
regularity  of  procedure.  It  has  been 
expressly  decided  that  such  matters  will 
not  be  inquired  into  by  the  courts.  In 
Kilgore  v.  Magee,  85  Pa.  401  (1877),  it 
was  contended  that  an  act  of  Assembly 
had  been  so  altered  during  its  passage  as 
to  change  its  original  purpose,  and  also 
that  the  required  forms  had  been  dis- 
regarded. As  to  this  the  court  said : 
"In  regard  to  the  legislation  required 
by  the  constitution,  we  think  the  sub- 
ject is  not  within  the  pale  of  judicial 
inquiry.     So  far  as  the  duty  and  the 


consciences  of  the  members  of  the  Leg- 
islature are  involved,  the  law  is  manda- 
tory. They  are  bound  by  their  oatlis 
to  obey  the  constitutional  mode  of 
proceeding,  and  any  intentional  disre- 
gard is  a  breach  of  duty  and  a  violation 
of  their  oaths.  But  when  a  law  has 
been  passed  and  approved  and  certi- 
fied in  due  form,  it  is  no  part  of  the 
duty  of  the  judiciary  to  go  behind  the 
law  as  duly  certified  to  inquire  into 
the  observance  of  form  in  its  passage. 
The  presumption  applies  to  the  act  of 
passing  the  law,  that  applies  generally 
to  the  proceedings  of  any  body  whose 
sole  duty  is  to  deal  with  the  subject. 
The  presumption  in  favor  of  regularity 
is  essential  to  the  peace  and  order  of 
the  State."  T.  R.  White,  The  Consti- 
tution of  Pennsylvania,  p.  212. 

'  Ala.  62 ;  Col.  5,  20 ;  Ky.  46 ;  La. 
39 ;  Miss.  74  ;  Mo.  4,  27 ;  Mon.  5,  22 ; 
Pa.  3,  2;  Tex.  3,  37;  Va.  50;  Wy.  3, 
23. 

«  Ky. 

»  Ala.  63;  Ark.  5,  22;  Ariz.*  1117; 
Cal.  4,  15;  Col.  5,  22;  Fla.  3,  17;  Ga. 
3,  7,  7;  Ida.  3,  15;  111.  4,  13;  Ind.  4, 
18;  Kan.  2,  15;  Ky.  46;  La.  39;  Md. 


PAET   III]  LEGISLATION  251 

may  dispense  with  such  rule,  on  a  vote  of  four  fifths  of  the  members 
present/  three  fourths/  two  thirds/  or  of  a  majority  of  those  elected.* 
But  in  Minnesota  and  Florida,  every  bill  must  have  been  read  at 
least  twice  at  length,  in  order  to  pass  either  house.  Provision  may 
be  made  by  law  for  reading  by  title  only.^  And  every  bill,  in  order 
to  become  a  law,  must,  in  many  States,  have  been  read  at  length  on 
its  final  passage,"  on  its  second  reading/  its  first/  or  on  its  first  and 
third.^  It  must  be  printed  for  the  use  of  members,'"  and  no  amend- 
ment is  allowed  on  the  last  reading." 

Of  Private  or  Local  Bills,^^  there  must,  by  the  Constitutions  of 
several  States,  be  notice  given ;  as  by  thirty  days'  publication  of  the 
bill  in  the  locality  affected  before  its  introduction  into  the  legislature,'^ 
or  in  others  four  weeks'  notice  by  such  publication.'*  In  one  State, 
the  manner  of  notice  is  expressly  left  to  the  Legislature  to  determine.'^ 
All  private  or  local  bills  must,  in  Georgia,  originate  in  the  lower 
house,  and  be  referred  to  a  committee.'"  There  is  a  permanent 
joint  committee  on  special  private  or  local  legislation.'^ 

§  303.  Voting}^  —  By  the  Constitutions  of  most  States  no  bill  '^ 
can  become  a  law  unless  on  its  final  passage  it  receive  in  each  House 
a  vote  of  a  majority  of  "each  house,"  ^°  or  of  the  members  elected.-' 

3,  27;  Mich.  4,  19;  Minn.  4,  20;  Miss.  Wy.     It  must  have  been  "upon  their 

59 ;  Mo.  4,  26 ;  N.  C.  2,  23 ;  N.  D.  63 ;  desks  in  its  final  form  three  calendar 

Neb.  3,  11;   Nev.  4,  18;   N.  J.  4,  4,  6;  legislative  days  "  (N.  Y.). 

O.  3,  16;   Okla.  5,  34;   Ore.  4,  19;   Pa.  ''  N.  Y. 

3,  4 ;  S.  C.  3,  18 ;  S.  D.  3,  17  ;  Tenn.  2,  '^  See  also  §§  395,  501. 

18 ;  Tex.  3,  32 ;  Utah ;  Va.  50 ;  W.  Va.  "  Ark.  5,  26 ;   Ga.  3,  7,  16 ;   La.  50 ; 

6,  29.     It  seems  the  readings  need  not  Mo.  4,  54 ;   N.  C.  2,   12 ;   Okla.    (four 

be  on  different  days  (Mich.) ;  and  the  weeks) ;  Pa.  3,  8;  Tex.  3,  57  (60  days) ; 

first  two  may  be  on  the  same  day  (N.  Fla.  3,  21. 

D.,  S.  D.).  '*  Ala.  106;  Okla.  5,  32. 

'  Tex.,  Va.,  W.  Va.  »^  N.  J.  4,  7,  9. 

2  O.  '«  Ga.  3,  7,  15. 

3  Ark.,  Cal.,  Fla.,  Ida.,  Ind.,  Kan.,  ''  Miss.  89;  Va.  51. 

Md.  (of  the  members  elected),  Minn.,  *^  Notes.    Whether  by  ballot  or  not, 

Miss.,  Nev.,  Okla.,  Ore.     But  only  so  see  §  231.    See  also  §  314. 

far  as  to  allow  all  three  readings  on  the  "'  So,  also,  of  joint  resolutions  (Kan., 

same  day  (Ark.).  Md.). 

*  Ky.  20  Ala.  63 ;  Ark.  5,  22. 

"  S.  C.     So    on    the    first    reading  ='  Cal.  4,  15;   Col.  5,  22;  Del  2,  10; 

(Fla.).  Ga.  3,  7,  14;   111.4,12;   Ind.  4,  25;  lo. 

«  Ala.;  Cal.;  Fla.;   Ida.;  Ind.;    lo.  3,  17;   Kan.  2,  13;   La.  39,  40;   Md.  3, 

3,  17;   Kan.;  Mich.;    Miss.;  Nev.;  N.  28;   Mich.  4,  19;    Minn.  4,  13;   Mo.  4, 

Y.  (implied)  3,  15;  Ore.;  W.  Va.  31;  N.  D.  65;  Neb.  3,  10;  Nev.  4,  18; 

'  Fla.,  S.  C.  N.  J.  4,  4,  6;  N.  Y.  3,  15;  O.  2,  9; 

«  Ky.  Okla.  5,  34  ;  Ore.  4,  25 ;  Pa.  3,4;  S.  D. 

»  N.  D.,  S.  D.  3,  18;  Tenn.  2,  18;  Utah  6,  22;  Wash. 

"  Ky. ;    Ida.  3,  15 ;    Men. ;    N.  Y. ;  2,  22 ;   Wy.  3,  25. 


252  THE    STATE    CONSTITUTIONS  [rOOK    III 

In  otliors,  of  a  majority  of  t\\v  members  present,'  and  this  would  be 
implied  in  States  where  the  Constitution  is  silent,  as  in  the  United 
States  Congress.  In  two,  a  majority  vote  including  two  fifths  of 
the  members  elected. - 

The  names  of  the  members  so  voting  for  or  against  a  bill  on  its 
final  passage  must  usually  be  entered  in  the  journals.^ 

In  many  States,  a  member  who  has  a  personal  or  private  interest 
in  any  measure  or  bill,  proposed  or  pending,  must  disclose  the  fact 
to  the  house  of  which  he  is  a  member,  and  cannot  vote  thereon.'* 

All  votes  on  the  final  passage  of  any  measure  shall  be  subject  to 
reconsideration  for  at  least  one  whole  legislative  day,  and  no  motion  to 
reconsider  such  vote  shall  be  disposed  of  adversely  on  the  day  on  which 
the  original  vote  was  taken,  except  on  the  last  day  of  the  session.^ 

§  304.  Veto  Power.  —  In  all  States  but  Rhode  Island  and  North 
Carolina,  and  in  the  territories "  the  Constitution  provides  that  every 
bill  or  every  joint  or  concurrent  resolution,  except  for  adjournment,^ 
passed  by  the  legislature  shall  be  presented  to  the  governor  before  it 
becomes  a  law;  and  if  he  approves  he  is  to  sign  it.^  Except  in 
Missouri,  resolutions  for  amending  the  Constitution.  The  governor 
may  generally  veto  a  bill,  by  returning  it  with  his  objections  to 
the  house  in  which  it  originated,^  or  in  Kansas,  to  the  house  of 
representatives.     It  will  then  become  a  law,  by  an  ordinary  ma- 

'    Ariz.*  1117;    Fla.  3,  17;    Ida.  3,  «  Ala.  125;   Ark.  6,  15;   Cal.  4,  16; 

15;   Mon.  5,  24.  Col.  4,  11;  Ct.  4,  12;   Del.  3,  18;   Fla. 

2    Ky.  47;  Va.  50.  3,  28;  Ga.  5,  1,  17;   Ida.  4,  10;   111.  5, 

»   Ala. ;    Ark. ;    Ariz.* ;    Cal. ;    Col. ;  16 ;   Ind.  5,  14 ;   lo.  3,  16 ;   Kan.  2,  14 ; 

Del.;     Fla.;     Ga. ;     Ida.;     111.;     lo. ;  Ky.  88;   La.  41,  76;   Mass.  2,  1,  1,  2; 

Kan. ;    Ky.  46 ;    La. ;    Md. ;    Mich. ;  Md.  2,  17 ;   Amt.  1890,  394  ;   Me.  4,  3, 

Minn.;     Mo.;     Mon.;     N.    D. ;     Neb.;  2;  Mich.  4,  14 ;  Minn.  4,  11;  Miss.  72; 

Nev. ;  N.  J. ;  N.  Y. ;  O. ;  Okla. ;  Pa. ;  Mo.  4,  39 ;  Mon.  7,  12  ;  N.  D.  79 ;  Neb. 

S.  D.;  Tenn.   2,   21;    "By  yeas  and  5,  15;   Nev.  4,  35;   N.  H.  2,  43;   N.  J. 

nays":   Utah  6,  22;    Va. ;   Wy.    The  5,  7;    N.  Y.  4,  9;    O.   1902,  p.  962; 

same    would    follow    in    other    States  Okla.  6,  11;  Ore.  5,  15;  Pa.  4,  15;   S. 

from  §  275.  C.  4,  23 ;  S.  D.  4,  9 ;  Tenn.  3,  18 ;  Tex. 

*  Ala.  82 ;    Col.  5,  43 ;    Del.  2,  20 ;  4,  14 ;    Utah  7,  8 ;    Va.  76 ;    Vt.  Amt. 

La.   52;     Ky.  57;  Mon.  5,  44;    N.  D.  11;   Wash.  3,  12;   W.  Va.  7,  14;   Wis. 

43;    Okla.  5,  24;   Pa.  3,  33;    Tex.  3,  5,10;  Wy.  4,  8.    And  so  in  U.  S.  C.  L  7. 

22 ;    Wash.   2,   30 ;   Wy.  3,   46.      See  «  Ala. ;    Ark. ;    Ariz.* ;    Cal. ;    Col. ; 

also  §  154.  Ct. ;    Del. ;     Fla. ;     Ida. ;     111. ;     Ind. ; 

^  Miss.  65.  lo. ;    Ky. ;     La. ;    Mass. ;    Md. ;    Me. ; 

"  U.  S.  R.  S.  1842.  Mich. ;  Minn. ;  Miss. ;  Mo.  4,  39 ;  Mon. ; 

7  Ala.;   Ark.  6,  16;   Ariz.*;   Col.  5,  N.  D. ;    Neb.;    Nev.;    N.  H. ;    N.  J.; 

39 ;    Del. ;    Ga. ;    Kan. ;    Ky.  89 ;    La.  N.  Y. ;   O. ;   Okla. ;   Ore. ;   Pa. ;   S.  C. ; 

78 ;  Mass. ;   Me. ;   Mich. ;   Minn.  4,  12 ;  S.  D. ;  Tenn. ;  Tex. ;  Utah ;  Va. ;  Vt. ; 

Mo.  5,  14  ;  Mon.  5,  40 ;  Neb. ;  N.  H.  2,  Wash. ;  W.  Va. ;  Wis. ;  Wy. ;  Territories, 

44;    Okla.;  Pa.  3,  26;  S.  C. ;  Tenn.;  U.  S.  R.  S.,  1842. 
Tex.  4,  15;  Va. ;  Wy.  3,  41. 


TART   III] 


LEGISLATION 


25; 


jority  vote  in  each  house/  or  a  majority  of  the  elected  members  of 
each  house,'  of  three  fifths  of  the  elected  members  of  each  house,^ 
two  thirds  of  the  members  present  in  each  house  *  (the  provision 
is  ambiguous,  however,  on  these  points  in  some  States,  though,  by 
custom,  it  means  the  members  present  '"),  two  thirds  of  the  elected 
members  of  each  house,"  two  thirds  of  the  elected  members  of  the 
house  which  originated  the  bill,  and  of  a  majority  in  the  other 
house,^  or  two  thirds  of  the  members  present,  and  a  majority  of 
those  elected,  in  each  house.**  The  votes  must  in  this  case  be 
entered  on  the  journal  ^  by  yeas  and  nays.  Any  bill  may  be 
vetoed  in  part.^" 

§  305.  Pocketed  Bills.  —  In  most  States,  if  a  bill  be  kept  a  cer- 
tain length  of  time  by  the  governor,  without  returning  it,  it  will 
become  a  law  except  in  case  of  adjournment  by  the  Legislature ;  as, 
three  days,  Sundays  excepted,"  five  days,'-  six  days,'^  or  ten  days.'* 
But  Sundays  apparently  are  not  excepted  in  some  States.'^  But  in 
most  States,  if  the  Legislature  adjourn  before  the  time  respectively 
limited  above,  the  bill  does  not  (except  as  below)  become  a  law.'® 
In  several  States,  however,  the  bill  does  become  a  law  if  not  returned 
by  the  governor  within  five  days  after  the  adjournment,"  ten  days 
after,'^  fifteen,'^  twenty,^  thirty  days  after;  -'  or,  within  two  -^  or  tlu-ee 


>  Ct. 

2  Ala.,  Ark.,  Ind.,  Ky.,  N.  J.,  Tenn., 
Vt.  W.  Va. 

«'  Del.,  Md.,  Neb. 

*  Fla. ;  Ga.  5,  1 ;  Ida. ;  Mass. ;  Me. ; 
Minn.  ;  Miss.  ;  Mon.  ;  N.  H.  ;  Ore. ; 
S.  C;  S.  D.;  Tex.;  Wash.;  Wis.; 
Territories.     So  in  U.  S.  C.  I.  7. 

5  Ga.,  Miss.,  S.  C. 

«  Cal.,  Col.,  111.,  Kan.,  La.,  Mich., 
N.  D.,  Nev.,  N.  Y.,  O.  (and  it  must  not 
be  less  than  on  the  original  passage) ; 
Okla.,  Pa.,  Utah,  Wy. 

'  Mo. 

»  Va. 

»  See  also  §  303. 

>«  (See  §  310.)     O.,  Va.,  Wash. 

'»  Ct.,  Ind.,  lo.,  Kan.,  Minn.,  N.  D., 
Nev.,  N.  M.,  Okla.,  S.  C,  S.  D.,  Wy., 
Wis. 

^*  Ark.,  Fla.,  Ga.,  Ida.,  La.,  Mass., 
Me.,  Miss.,  Mon.,  Neb.,  Nev.,  N.  H., 
N.   J.,    Ore.,   Tenn.,    Utah,    Va.,    Vt., 
Wash.,  W.  Va.,  Wy. 

»  Ala.,  Md. 

"  Ariz. ;     Cal. ;     Col. ;     Del. ;     lU. ; 


Ky.;   Mich.;  Mo.   4,   40;  N.  Y. ;   O. ; 
Pa.;  Tex. 

1^  Col.,  La.,  Mass.,  Mo.,  Pa. 

i«  Ala. ;     Ark. ;     Cal. ;     Col. ;     Ct. 
Del.;     Fla.;     Ga. ;     111.;     Ind.;     lo. : 
Kan. ;   Ky. ;   La. ;   Mass.  Amt.  1 ;  Md. 
Me. ;   Mich. ;   Minn. ;   Miss. ;   Mo.  5,  12 
Mon.;    N.  D. ;    Neb.;    N.  H. ;    N.  J. 
N.  Y. ;   O. ;   Okla. ;   Ore. ;    Pa. ;   S.  C. 
S.  D. ;    Tenn.;    Tex.;    Va. ;    Vt. ;    W 
Va. ;   Wis. ;   Wy. ;   and  the  territories 
In  Vermont  it  does  not  become  a  law 
if  the  Legislature  adjourn  within  three 
days    after    its    presentment    to    the 
governor. 

"  Ind.,  Ky.,  Neb.,  Ore.,  S.  D.,  W. 
Va. 

Sundays  are  excepted,  except  in  Ark., 
Fla.,  111.,  Ind.,  Neb.,  N.  Y.,  S.  D.,  W. 
Va.  Tex. 

i«  Fla.*,  111.,  Ida.,  Ky.,  Nev.,  S.  D., 
Utah,  Wash. 

"  Mon.,  N.  D.,  Wy. 

2"  Ark.,  Tex. 

"  Col. ;  Mo. ;  N.  J.*  1880 ;  173 ;  Pa. 

"2  Ala.,  S.  C. 


254  THE   STATE   CONSTITUTIONS  [liOOK    III 

(Jiivs  after  the  next  meeting  of  the  Legislature,'  or  ten  days  after." 
And  in  California,^  the  bill  becomes  a  law  //  returned  and  signed 
within  ten  days  after  the  adjournment,  in  Oklahoma  fifteen  days, 
in  New  York  thirty  days  after.  So,  in  Michigan,  if  returned  signed 
within  five  days  of  the  adjournment,  the  bill  having  been  passed 
in  the  last  five  days  of  the  session ;  or,  in  Minnesota,  if  passed 
in  the  last  three  days  of  the  session,  if  signed  within  three  days 
of  the  adjournment;  and  in  Iowa,  if  returned  within  thirty  days 
after. 

§  306.  General  Restrictions.  —  By  the  Constitutions  of  several 
States,  no  new  bill  can  be  introduced  into  either  House  after  the 
first  thirty  *  or  fifty  ^  days  of  the  session ;  or,  not  during  the  last  three 
days  of  the  session."  In  others,  not  within  the  last  ten  days,  except 
by  a  two-thirds  vote  of  a  full  house.^  And  in  one,  no  bill  can  be 
passed  by  either  house  on  the  day  prescribed  for  adjournment,*  nor 
be  presented  to  the  governor  within  two  days  of  the  final  adjourn- 
ment,^ nor  within  the  last  twenty  days  except  on  special  message 
of  the  governor."^ 

By  the  Constitutions  of  three  States,  after  a  bill  or  resolution  has 
been  considered  and  defeated  in  either  house,  no  bill  the  same  in 
substance  shall  be  passed  during  that  session,"  or  be  again  proposed 
without  the  consent  of  a  majority  of  the  house  which  rejected  it.'- 
In  New  Mexico  and  Ai'izona,  all  laws  passed  by  the  territorial 
Legislature  and  governor  must  be  submitted  to  Congress,  and,  if 
disapproved,  shall  be  void.^^ 

There  can  be  no  legislation  at  special  sessions  on  subjects  other 
than  those  designated  in  the  Governor's  proclamation  except  on 
two-thirds  vote  of  each  House. ^*    • 

In  other  States  these  matters  are  usually  provided  for  by  the 
Legislature  itself. 

§  307.  Amendments,  Repeals,  and  Revisions.  —  The  Constitu- 
tions of  many  States  provide  that  no  law  shall  be  revived,  altered, 
or  amended  by  reference  to  its  title  only;   but  the  act  revived,  and 

1  Me.,  Miss.  «  Ind.  5,  14. 

=>  111.  "  Minn.  Amt.  1889,  p.  2. 

*  Sundays  excepted.  "  Ga.  3,  7,  13  (without  the  consent 

*  Col.  5,  19,  Amt.  1887.  of  two  tliirds  of  the  house  which  re- 

*  Cal.  4,  2  (unless  by  the  consent  of  jected  it) ;   Tenn.  2,  19 ;   Tex.  3,  34. 
two-tliirds  of  the  members).  '-  La.  38. 

«  Ark.  5,  34 ;   Miss.  67.  "  U.  S.  R.  S.  1850. 

"  Md.  3,  27 ;   Wash.  2,  36.  "  Ala.  76 ;  Ida. ;  Mon. ;  Okla. ;  Utah. 

«  Minn.  4,  22.  (See  §  277.) 


PART    III]  LEGISLATION  255 

sections  altered  or  amended,  sliall  be  enacted  and  published  at 
length.'  And  the  sections  so  amended  shall,  in  tlu-ee,  be  repealed. ^ 
So,  in  two  States,  no  act  shall  be  passed  which  shall  provide  that 
any  existing  law  or  any  part  thereof  shall  be  made  or  deemed  a  part 
of  said  act,  or  shall  be  applicable,  except  by  inserting  it  in  such  act.^ 
But  in  two  others,  all  acts  wliich  repeal,  revive,  or  amend  former 
laws,  shall  recite  in  their  caption  or  otherwise  the  substance  of  the 
act  repealed  or  revived.*  Amendments  may  not  turn  a  general  law 
into  a  special,  private,  or  local  one.^ 

§  308.  When  Acts  take  Effect.  —  In  some  States  the  Constitution 
provides  that  laws  go  into  effect  immediately  upon  publication,^  or 
on  the  fortieth  day  after  final  passage,^  the  sixtieth  day,^  or  the  nine- 
tieth day,^  or  ninety  days  after  the  end  of  the  session ;  ^°  or  sixty  days 
after;  "  on  the  July  1st  after  the  passage  of  the  law,'-  the  July  4th 
following,'^  or  the  June  1st  following.'*  In  Louisiana,  on  the  day  of 
publication  in  the  place  where  the  State  journal  is  published ;  else- 
where, twenty  days  thereafter.'^  In  other  States  the  Legislature  is 
to  prescribe  the  time  when  its  acts  take  effect.'®  In  several,  the 
Legislature  are  to  provide  for  the  speedy  publication  of  laws.'^ 
The  above  rules  are  subject  to  exception  in  several  States  **  if  the 
Act  so  provide."  '^ 

No  law  can  be  in  force  until  published.'®  In  three  States,  no  law 
shall  be  passed  the  taking  effect  of  which  shall  be  made  to  depend 
upon  any  authority,  except  as  provided  in  the  Constitution.^" 

But  in  some  States  the  Legislature  may,  "in  case  of  emergency" 
provide  that  any  law  shall  go  into  effect  sooner  than  the  time  re- 

1  Ala.  45 ;    Ark.  5,  23 ;    Cal.  4,  24 ;  »  Col.  5,  19. 

Col.  5,  24 ;   Fla.  3,  16 ;    Ida.  3,  18 ;    111.  '"  Ky.  55 ;    Mich,  4,  20 ;    Mo.  4,  36 ; 

4,13;  Ind.  4,  21;  Kan.  2,  16;  Ky.  51 ;  Neb.  3,  24;    Okla.  5,  58;    Ore.  4,  28; 

La.  32 ;   Md.  3,  29 ;   Mich.  4,  25 ;  Miss.  S.  D.  3,  22  ;  Tex.  3,  39 ;  Va.  53 ;  Wash. 

61 ;  Mo.  4,  33  &  34  ;  Mon.  5,  25 ;  N.  D.  2,  31 ;  W.  Va.  6,  30. 

64 ;  Neb.  3,11;  Nev.  4,  17  ;  N.  J.  4,  7,  ''  Fla.  3,  18 ;  Ida.  3,  22 ;  Utah  6,  25. 

4;    O.  2,  16;    Okla.  5,  57;   Ore.  4,  22;  '-  111.  4,  13;  N.  D.  67. 

Pa.  3,  6 ;  Tex.  3,  36 ;   Utah  6,  22 ;   Va.  >'  lo.  3,  26. 

52;   Wash.  2,  37;   W.  Va.  6,  30;   Wy.  "  Md.  3,  31. 

3,  26.  '=  La.  42. 

^  Kan.,  Neb.,  O.     This   seems  un-  '"  Kan.  1,  19. 

necessary.  "  Col.  18,  8 ;  lo. ;  Kan. ;  La. ;  Mich. 

3  N.  J.;  N.  Y.  3,  17.  4,  36;  Neb.;  Nev.  15,  8;  N.  Y.  6,  23; 

*  Ga.  3,  7,  17  ;  Tenn.  2,  17.  Utah  6,  25 ;   Wis. 

«  Va.  64.     See  §  394.  »»  Md.,  Miss.,  Ore.,  Tenn. 

«  Ind.  4,  28;  Wis.  7,  21.  '»  Kan.,  Wis. 

'  Tenn.  2,  20.  -"  Ind.   1,  25;  O.  2,  26;   Ore.  1,  21. 

«  Miss.  75.  But  see  §  309. 


256 


THE   STATE   CONSTITUTIONS 


[book   III 


spectlvely  above  limited,'  as  by  a  two-thirds  vote  of  all  members 
elected  to  each  house,^  a  four-IH'tlis  votc,^  or  a  majority  of  those 
elected/ 

No  amendment  to  bills  by  one  house  shall  be  concurred  in  by  the 
other,  except  by  a  vote  of  a  majority  thereof,  taken  by  yeas  and 
nays;  and  the  names  of  those  voting  for  and  against  recorded  uj)()n 
the  journals;  and  reports  of  committees  of  conference  shall  in  like 
manner  be  adopted  in  each  house. ^ 

"Emergency"  is  strictly  defined  in  Oklahoma.® 

§  309.  Referendum  and  Initiative.  —  Some  States  impliedly  for- 
bid the  referendum  in  their  Constitutions  (see  §§  201,  300).^  Six 
have  adopted  it:  Montana,  Nevada,  Oklahoma,  Oregon,  South 
Dakota,    and    Utah  ^ — all    new   or   far   western    States;    and   in 


»  Col.,  Fla.,  Ida.,  Ind.,  lo.,  Ky., 
Mich.,  Mo.,  Neb.,  Ore.,  S.  D.,  Tex., 
Utah,  Va.,  Wash.,  W.  Va. 

^  Col.,  111.,  Mich.,  Mo.,  N.  D.  (pres- 
ent). Neb.,  Olila.,  S.  D.,  Tex.,  Utah, 
Wash.,  W.  Va. 

'  Va. 

*  Ky. 

«  Miss.  G2. 

*  "No  act  shall  take  effect  until 
ninety  days  after  the  adjournment  of 
tlie  session  at  wliich  it  was  passed, 
except  enactments  for  carrying  into 
effect  provisions  relating  to  the  initia- 
tive and  referendum,  or  a  general  ap- 
propriation bill,  unless,  in  case  of 
emergency,  to  be  expressed  in  the  act, 
the  Legislature,  by  a  vote  of  two-thirds 
of  all  members  elected  to  each  House, 
BO  directs.  An  emergency  measure 
shall  include  only  such  measures  as  are 
immediately  necessary  for  the  preser- 
vation of  the  public  peace,  health,  or 
safety,  and  shall  not  include  the  grant- 
ing of  franchises  or  Ucense  to  a  corpo- 
ration or  individual,  to  extend  longer 
than  one  year,  nor  provision  for  the 
purchase  or  sale  of  real  estate,  nor  the 
renting  or  encumbrance  of  real  prop- 
erty for  a  longer  term  than  one  year. 
Emergency  measures  may  be  vetoed 
by  the  Governor,  but  such  measures  so 
vetoed  may  be  passed  by  a  three- 
fourths  vote  of  each  House,  to  be 
duly  entered  on  the  journal  "  (Okla. 
3,  58). 

^  "No  law,  except  such  as  relates 
to  the  sale,   loan,   or  gift  of  vinous, 


spirituous,  or  malt  licjuors,  bridges, 
turnpikes,  or  other  pubhc  roads,  pub- 
lic buildings  or  improvements,  fencing, 
running  at  large  of  stock,  matters  per- 
taining to  common  schools,  paupers, 
and  the  regulation  by  counties,  cities, 
towns,  or  other  municipaUtics  of  their 
local  affairs,  shall  be  enacted  to  take 
effect  upon  the  approval  of  any  other 
authority  than  the  General  Assembly, 
unless  otherwise  expressly  provided  in 
tliis  Constitution  "  (Ky.  60). 

*  "The  legislative  power  shall  be 
vested  in  a  Legislature  —  except  that 
the  people  expressly  reserve  to  them- 
selves the  right  to  propose  measures, 
which  measures  the  Legislature  shall 
enact  and  submit  to  a  vote  of  the  elec- 
tors of  the  State,  and  also  the  right  to 
require  that  any  laws  which  the  Legis- 
lature may  have  enacted  shall  be  sub- 
mitted to  a  vote  of  the  electors  of  the 
State  before  going  into  effect  (except 
such  laws  as  may  be  necessary  for  the 
immediate  preservation  of  the  public 
peace,  health  or  safety,  support  of  the 
State  government  and  its  existing 
public  institutions). 

"Provided,  that  not  more  than  five 
per  centum  of  the  qualified  electors  of 
the  State  shall  be  required  to  invoke 
either  the  initiative  or  the  referendum. 

"This  section  shall  not  be  construed 
so  as  to  deprive  the  Legislature  or  any 
member  thereof  of  the  right  to  propose 
any  measure.  The  veto  power  of  the 
executive  shall  not  be  exercised  as  to 
measures   referred   to   a   vote   of   the 


PART   III] 


LEGISLATION 


257 


Oregon  the  secretary  of  state  complains  that  the  laws  adopted  by 


people.  This  section  shall  apply  to 
municipalities"  (S.  D.  3,  1). 

"The  legal  voters,  or  such  fractional 
part  thereof,  of  the  State  of  Utah  as 
may  be  provided  by  law,  under  such 
conditions  and  in  such  manner  and 
within  such  time  as  may  be  provided 
by  law,  may  initiate  any  desired  legis- 
lation and  cause  the  same  to  be  sub- 
mitted to  a  vote  of  the  people  for  ap- 
proval or  rejection,  or  may  require  any 
law  passed  by  the  Legislature  (except 
those  laws  passed  by  a  two-thirds  vote 
of  the  members  elected  to  each  house 
of  the  Legislature)  to  be  submitted  to 
the  voters  of  the  State  before  such  law 
shall  take  effect. 

"The  legal  voters  or  such  fractional 
part  thereof  as  may  be  provided  by 
law,  of  any  legal  subdivision  of  the 
State,  under  such  conditions  and  in 
such  manner  and  within  such  time  as 
may  be  provided  by  law,  may  ini- 
tiate any  desired  legislation  and  cause 
the  same  to  be  submitted  to  a  vote 
of  the  people  of  said  legal  subdivision 
for  approval  or  rejection,  or  may  re- 
quire any  law  or  ordinance  passed  by 
the  law-making  body  of  said  legal  sub- 
division to  be  submitted  to  the  voters 
thereof  before  such  law  or  ordinance 
shall  take  effect"  (Utah  6,  1,  Amt.). 

"The  legislative  authority  of  the 
State  shall  be  vested  in  a  Legislature, 
consisting  of  a  Senate  and  a  House  of 
Representativ'es ;  but  the  people  re- 
serve to  themselves  the  power  to  pro- 
pose laws  [and  amendments  to  the 
Constitution  in  Oklahoma  and  Oregon] 
and  to  enact  or  reject  the  same  at  the 
polls  independent  of  the  Legislature, 
and  also  reserve  power  at  their  own 
option  to  approve  or  reject  at  the 
polls  any  act  of  the  Legislature"  (Mon. 
1905,  61 ;  Okla.  5,  1 ;  Ore.  4,  1,  Amt. 
1899,  p.  1129). 

"Except,  that  the  people  may  not 
propose  laws  relating  to  appropriations, 
constitutional  amendments,  or  local  or 
special  laws  [as  enumerated  in  §  395] 
and  they  have  no  right  to  approve  or 
reject  acts  of  the  Legislature  which  are 
necessary  for  the  immediate  preser- 
vation of  the  public  peace,  health  or 
safety,  or  laws  relating   to   appropri- 


ations of  money,  or  laws  for  the  stib- 
mission  of  constitutional  amendments 
or  local  or  special  laws  as  above." 
(Mon.). 

"The  first  power  reserved  by  the 
people  is  the  Initiative,  and  eight  per 
cent  ot  the  legal  voters  of  the  State 
shall  be  required  to  propose  any  meas- 
ure by  petition ;  provided,  that  two- 
fifths  of  the  whole  number  of  the  coun- 
ties of  the  State  must  each  furnish  as 
signers  of  said  petition  eight  per  cent 
of  the  legal  voters  in  such  county,  and 
every  such  petition  shall  include  the 
full  text  of  the  measure  so  proposed. 
Initiative  petitions  shall  be  filed  with 
the  Secretary  of  State,  not  less  than 
four  months  before  the  election  at 
which  they  are  to  be  voted  upon" 
(Mon.). 

"The  second  power  is  the  Refer- 
endum, and  it  may  be  ordered  either  by 
petition  signed  by  five  per  cent  of  the 
legal  voters  of  the  State ;  provided, 
that  two-fifths  of  the  whole  number  of 
the  counties  of  the  State  must  each 
furnish  as  signers  of  said  petition  five 
per  cent  of  the  legal  voters  in  such 
county,  or,  by  the  Legislative  Assem- 
bly as  other  Bills  are  enacted"  (Mon.). 

"Referendum  petitions  shall  be 
filed  with  the  Secretary  of  State,  not 
later  than  six  months  after  the  final 
adjournment  of  the  Session  of  the 
Legislative  Assembly  which  passed  the 
Bill  on  which  the  Referendum  is  de- 
manded. The  veto  power  of  the  gov- 
ernor shall  not  extend  to  measures  re- 
ferred to  the  people  by  the  Legislative 
Assembly  or  by  Initiative  Referendum 
petitions"  (Mon.). 

"All  elections  on  measures  referred 
to  the  people  of  the  State  shall  be  had 
at  the  biennial  regular  general  election, 
except  when  the  Legislative  Assem- 
bly, by  a  majority  vote,  shall  order  a 
special  election.  Any  measure  referred 
to  the  people  shall  still  be  in  full  force 
and  efTect  unless  such  petition  be 
signed  by  fifteen  per  cent  of  the  legal 
voters  of  a  majority  of  the  whole  num- 
ber of  the  counties  of  the  State,  in 
which  case  the  law  shall  be  inoperative 
until  such  time  as  it  shall  be  passed 
upon  at  an  election,  and  the  result  has 


17 


258 


THE    STATE   CONSTITUTIONS 


[rook    III 


initiative   are  "full  of    bad   spelling,  punctuation,  omissions,  and 


been  determined  and  declared  as  pro- 
vided by  law.  The  whole  miinber  of 
votes  cast  for  governor  at  the  regular 
election  last  preceding  the  filing  of  any 
petition  for  the  Initiative  or  Referen- 
dum, shall  be  the  basis  on  which  the 
nvimber  of  the  legal  petitions  and 
orders  for  the  Initiative  and  for  the 
Referendum  shall  be  filed  with  the 
Secretary  of  State ;  and  in  submitting 
the  same  to  the  people,  he,  and  all 
other  officers,  shall  be  guided  by  the 
General  laws  and  the  Act  submitting 
this  amendment,  until  Legislation  shall 
be  esi)ecially  provided  therefor.  The 
enacting  clause  of  every  law  originated 
by  the  Initiative  shall  be  as  follows: 

"'Be  it  enacted  by  the  people  of 
Montana' : 

"This  section  shall  not  be  construed 
to  deprive  any  member  of  the  Legisla- 
tive Assembly  of  the  right  to  introduce 
any  measure"  (Mon.). 

"  By  the  Oklahoma  Constitution,  the 
initiative  consists  in  the  proposal  by 
eight  per  cent  of  the  legal  voters  of 
any  legislative  measure,  and  in  the 
same  manner  fifteen  per  cent  may  pro- 
pose amendments  to  the  State  Consti- 
tution by  petition.  Every  such  peti- 
tion must  include  the  full  text  of  the 
measure  proposed.  The  referendum 
may  be  ordered  except  as  to  laws  neces- 
sary for  the  immediate  preservation  of 
the  public  peace,  health  or  safety, 
either  by  petition  signed  by  five  per 
cent  of  the  voters,  or  by  the  Legisla- 
ture as  other  bills  are  enacted.  The 
ratio  and  per  cent  to  be  based  on  the 
total  number  of  votes  cast  at  the  last 
general  election  for  the  State  office  re- 
ceiving the  highest  number  of  votes. 
Referendum  petitions  must  be  filed 
with  the  Secretary  of  State  not  more 
than  ninety  days  after  the  final  ad- 
journment of  the  session  of  the  Legisla- 
ture which  passed  the  bill  on  w^hich  the 
referendum  is  demanded.  The  gov- 
ernor has  no  veto  power  on  measures 
voted  on  by  the  people.  The  elections 
upon  such  measures  are  held  at  the 
next  election  held  throughout  the  State 
except  when  the  Legislature  or  gov- 
ernor order  a  special  election,  and  must 
be  passed  by  a  majority  of  votes  cast. 


whereupon,  apparently,  it  takes  elTect 
immediately.  The  referendum  may  be 
demanded  by  the  peojile  against  one 
or  more  items,  sections,  or  parts  of  any 
act  of  the  Legislature  as  well  as  on  a 
complete  act,  and  the  fihng  of  a  peti- 
tion against  a  part  does  not  delay  the 
remainder  of  the  act  from  becoming 
law.  Otherwi.se  the  referendum,  ap- 
parently, suspends  its  operation.  The.se 
powers  of  initiative  and  referendum  are 
further  reserved  to  the  local  voters  of 
every  county  and  district  in  the  State 
as  to  all  local  legislation  or  action  in 
the  administration  of  county  and  dis- 
trict government  in  and  for  their  re- 
spective counties  and  districts.  The 
manner  of  such  powers  to  be  pre- 
scribed by  general  laws.  The  requi- 
site number  of  petitioners  for  the 
initiative  and  referendum  in  counties 
and  districts  to  be  twice  the  ratio  to 
the  whole  number  of  legal  voters  in 
such  county  or  district  as  herein  pro- 
vided for  the  State  at  large.  Any 
mea,sure  rejected  by  the  people  through 
initiative  or  referendum  cannot  be 
again  propo.sed  by  the  initiative  within 
three  years  by  less  than  twenty-five 
per  cent  of  the  legal  voters.  This  reser- 
vation of  the  powers  of  initiative  and 
referendum  does  not,  however,  deprive 
the  Legislature  of  the  right  to  repeal 
any  law,  propose  or  pass  any  measure 
which  may  be  consistent  with  the  Con- 
stitution of  the  State  and  of  the  United 
States.  Laws  shall  be  provided  to 
prevent  corruption  in  making,  procur- 
ing and  submitting  initiative  and 
referendum  petitions"  (Okla.  5,  2-8). 

"The  powers  of  the  initiative  and 
referendum,  reserved  by  this  Constitu- 
tion to  the  people  of  the  State  and  the 
respective  counties  and  districts  therein, 
are  hereby  preserved  to  the  people  of 
every  municipal  corporation  now  ex- 
isting or  which  shall  hereafter  be  cre- 
ated within  this  State,  with  reference 
to  all  legislative  authority  which  it  may 
exercise,  and  amendments  to  charters 
for  its  own  government  in  accordance 
with  the  provisions  of  this  Consti- 
tution. 

"  Everj?-  petition  for  either  the  initia- 
ative  or  referendum  in  the  government 


PART    III] 


LEGISLATION 


259 


repeated  words;"  and  an  important  amendment  to  the  Constitu- 


of  a  municipal  corporation  shall  be 
signed  by  a  number  of  qualified  electors 
residing  within  the  territorial  limits  of 
such  municipal  corporation,  equal  to 
twenty-five  per  centum  of  the  total 
number  of  votes  cast  at  the  next  pre- 
ceding election,  and  every  such  pe- 
tition shall  be  filed  with  the  chief 
executive  officer  of  such  municipal 
corporation. 

"When  such  petition  demands  the 
enactment  of  an  ordinance  or  other 
legal  act  other  than  the  grant,  exten- 
sion or  renewal  of  a  franchise,  the 
chief  executive  office  shall  present  the 
same  to  the  legislative  body  of  such 
corporation  at  its  next  meeting,  and 
unless  the  said  petition  shall  be  granted 
more  than  thirty  days  before  the  next 
election  at  which  any  city  officers  are 
to  be  elected,  the  chief  executive  officer 
shall  submit  the  said  ordinance  or  act 
so  petitioned  for,  to  the  qualified  elec- 
tors at  said  election ;  and  if  a  majority 
of  said  electors  voting  thereon  shall 
vote  for  the  same,  it  shall  tliereupon 
become  in  full  force  and  effect. 

"When  such  petition  demands  a 
referendum  vote  upon  any  ordinance 
or  any  other  legal  act  other  than  the 
grant,  extension,  or  renewal  of  a  fran- 
chise, the  chief  executive  officer  shall 
submit  said  ordinance  or  act  to  the 
qualified  electors  of  said  corporation  at 
the  next  succeeding  general  municipal 
election,  and  if,  at  said  election,  a  ma- 
jority of  the  electors  voting  thereon 
shall  not  vote  for  the  same,  it  shall 
thereupon  stand  repealed. 

"When  such  petition  demands  an 
amendment  to  a  charter,  the  chief  ex- 
ecutive officer  shall  submit  such  amend- 
ment to  the  qualified  electors  of  said 
municipal  corporation  at  the  next 
election  of  any  officers  of  said  corpora- 
tion, and  if,  at  said  election,  a  majority 
of  said  electors  voting  thereon  shall 
vote  for  such  amendment,  the  same 
shall  thereupon  become  an  amendment 
to  and  a  part  of  said  charter,  when 
approved  by  the  Governor  and  filed  in 
the  same  manner  and  form  as  an  orig- 
inal charter  is  required  by  the  provi- 
sions of  this  article  to  be  approved  and 
filed"  (Okla.  18,4). 


"The  legislative  authority  of  the 
State  shall  be  vested  in  a  legislative 
assembly,  consisting  of  a  Senate  and 
House  of  Representatives,  but  the 
people  reserve  to  themselves  power  to 
propose  laws  and  amendments  to  the 
Constitution,  and  to  enact  or  reject 
the  same  at  the  polls,  independent  of 
the  legislative  assembly,  and  also  re- 
serve power  at  their  own  option  to 
approve  or  reject  at  the  polls  any  act 
of  the  legislative  assembly.  The  first 
power  reserved  by  the  people  is  the 
initiative,  and  not  more  than  eight  per 
cent  of  the  legal  voters  shall  be  required 
to  propose  any  measure  by  such  peti- 
tion, and  every  such  petition  shall 
include  the  full  text  of  the  measure  so 
proposed.  Initiative  petitions  shall  be 
filed  with  the  Secretary  of  State  not 
less  than  four  months  before  the  elec- 
tion at  which  they  are  to  be  voted 
upon.  The  second  power  is  the  refer- 
endum, and  it  may  be  ordered  (except 
as  to  laws  necessary  for  the  immediate 
preservation  of  the  public  peace,  health 
or  safety)  either  by  petition,  signed  by 
five  per  cent  of  the  legal  voters,  or 
by  the  legislative  assembly,  as  other 
bills  are  enacted.  Referendum  peti- 
tions shall  be  filed  with  the  Secretary  of 
State  not  more  than  ninety  days  after 
the  final  adjournment  of  the  session  of 
the  legislative  assembly  which  passed 
the  bill  on  which  the  referenduiTi  is 
demanded.  The  veto  power  of  the 
governor  shall  not  extend  to  meas- 
ures referred  to  the  people.  All  elec- 
tions on  measures  referred  to  the  people 
of  the  State  shall  be  had  at  the  biennial 
regular  general  elections,  except  when 
the  legislative  assembly  shall  order  a 
special  election.  Any  measure  referred 
to  the  people  shall  take  effect  and  be- 
come the  law  when  it  is  approved  by  a 
majority  of  the  votes  cast  thereon,  and 
not  otherwise.  The  style  of  all  bills 
shall  be :  *  Be  it  enacted  by  the  people 
of  the  State  of  Oregon.'  This  section 
shall  not  be  construed  to  deprive  any 
member  of  the  legislative  assembly  of 
the  right  to  introduce  any  measure. 
The  whole  number  of  votes  cast  for 
justice  of  the  Supreme  Court  at  the 
regular  election  last  preceding  the  filing 


260 


THE    STATE   CONSTITUTIONS 


[book   III 


tion  rc'(juliiiig  constitutional  anioiuliiienls  proposed  hv  initiative 
to  be  submitted  to  the  j)r()j)le  at  the  next  election,  and  calling  for 
a  constitutional  convention,  is  not  included  in  the  Oregon  law  of 
1907,  though  adopted  by  the  people  June  4,  lUOO.  It  is  yet  too 
early  to  judge  of  the  effect  in  the  other  States.  In  Delaware  the 
Legislature  "are  to  provide  a  system  of  advisory  initiative  and 
referendum."  ' 


Article  31.    Form  of  Revenue  Bills 

§  310.  Origin.  —  All  bills  for  raising  revenue  must,  by  the  Con- 
stitutions of  most  of  the  States,  originate  in  the  lower  house;  but 
the  senate  may  generally  propose  amendments  as  in  other  bills.^ 
But  no  new  matter  not  relating  to  the  revenue  can  be  so  introduced.^ 
The  governor  may,  in  most  States,  veto  certain  items  in  an  appro- 
priation bill  and  allow  the  others  to  become  a  law.*    In  several  States, 


of  any  petition  for  the  initiative  or  for 
the  referendum  sliall  be  the  basis  on 
which  the  number  of  legal  voters  neces- 
sary to  sign  such  petition  shall  be 
counted.  Petitions  and  orders  for  the 
initiative  and  for  the  referendum  shall 
be  filed  with  the  secretary  of  state,  and 
in  submitting  the  same  to  the  people 
he  and  all  other  officers  shall  be  guided 
by  the  general  laws  and  the  act  sub- 
mitting this  amendment  until  legisla- 
tion shall  be  especially  provided 
therefor"  (Ore.  1S99,  p.  1129,  Amt.  to 
IV.  1). 

"Whenever  ten  per  centum  or  more 
of  the  voters  of  this  State,  as  shown  by 
the  number  of  votes  cast  at  the  last 
preceding  general  election,  shall  ex- 
press their  wish  that  any  law  or  resolu- 
tion made  by  the  Legislature  be  sub- 
mitted to  a  vote  of  the  people,  the 
officers  charged  with  the  duties  of  an- 
nouncing and  proclaiming  elections 
and  of  certifying  nominations  or  ques- 
tions to  be  voted  on,  shall  submit  the 
question  of  thg  approval  or  disapproval 
of  said  law  or  resolution  to  be  voted  on 
at  the  next  ensuing  election  wherein  a 
State  or  Congressional  officer  is  to  be 
voted  for,  or  wherein  any  question  may 
be  voted  on,  by  the  electors  of  the 
entire  State. 

"When  a  majority  of  the  electors 
voting  at  a  State  election  shall  by  their 


votes  signify  approval  of  a  law  or  reso- 
lution such  law  or  resolution  shall 
stand  as  the  law  of  the  State  and  shall 
not  be  overruled,  annulled,  set  aside, 
suspended,  or  in  any  way  made  inop- 
erative except  by  the  direct  vote  of 
the  people.  When  such  majority  shall 
so  signify  disapproval,  the  law  or  reso- 
lution so  disapproved  shall  be  void  and 
of  no  effect"  (Nev.  1901,  p.  139). 

1  Del.  1905,  53. 

==  Ala.  70;  Ark.  6,  17;  Col.  5,  31; 
Del.  8,  2;  Ga.  3,  7,  10;  Ida.  3,  14; 
Ind.  4,  17 ;  Ky.  47 ;  La.  37  ;  Mass.  2,  1, 

3,  7;  Me.  4,  3,  9 ;  Minn.  4,  10;  Mon. 
5,  32;    Neb.  3,  9;   N.  H.  2,  17;    N.  J. 

4,  6,  1 ;    Okla.  5,  33 ;  Ore.  4,  18 ;   Pa. 

3,  14;  S.  C.  3,  15;  Tex.  3,  33;  Vt. 
Amt.  3;  Wy.  3,  33.  This  principle 
was  fully  established  in  England  as 
early  as  1407  (T.-L.  p.  248).  It  is  also 
contained  in  the  United  States  Con- 
tution  (I.  7  (1)).    See  also  §  300. 

3  Del. ;  Ky. ;  Me. ;  Vt. ;  Miss.  69. 
*  Ala.  126 ;    Ark. ;    Cal.  4,  16 ;    Col. 

4,  12;  Del.  3,  18;  Fla.  4,  IS;  Ga.  5,  1, 
16;  Ida.  4,  11;  Kan.  1903,  545;  Ky. 
88;  La.  77;  Md.  Amt.  1890,  194; 
Minn.  4,  11;  Miss.  73;  Mo.  5,  13; 
Mon.  7,  13;  N.  D.  80;  Neb.  5,  15; 
N.  J.  5,  7 ;  N.  Y.  4,  9 ;  Okla.  6,  12 ;  Pa. 
4,  16;  S.  C.  4,  23;  S.  D.  4,  10;  Tex. 
4,  14  ;  Utah  7,  8 ;  Va.  76 ;  Wash.  14, 
12 ;   W.  Va.  7,  15 ;  Wy.  4,  9. 


PAUT   III]  LEGISLATION  261 

no  appropriation  bill  can  be  passed  in  the  last  five  '  or  ten  ^  days 
of  the  Legislative  session,  or  not  after  the  first  forty  days  but  by 
unanimous  consent.^ 

§  311.  The  General  Appropriation  Bill  may  contain  only,  in 
some  States,  appropriations  for  the  ordinary  expenses  of  the  State 
in  its  legislative,  executive,  and  judicial  departments.'  So,  in  several, 
for  the  general  expenses  of  government.^  And  in  a  few,  for  the  in- 
terest on  the  public  debt,^  for  the  sinking  fund,^  for  public  schools,^ 
or  public  charities.^  In  more  detail,  it  may  contain  appropriations 
for  salaries  of  State  officers  generally,'"  of  the  Legislature,  or  for  the 
"civil  list";  "  for  the  cost  of  collecting  the  revenue;'^  for  institu- 
tions under  the  exclusive  control  and  management  of  the  State;  '^ 
for  the  support  of  the  eleemosynary  institutions  of  the  State."  It 
may  not  contain  any  other  enactment  or  provision  unless  it  relate 
specifically  to  some  particular  appropriation.'^ 

§  312.  Other  Appropriation  Bills  must,  by  the  Constitution  of 
a  few  States  contain  no  provisions  on  any  other  subject;  "^  and  so, 
in  one,  of  all  bills  for  raising  revenue ;  "  so,  they  must,  in  other  States, 
contain  only  one  item  or  subject.'^ 

They  must,  in  several,  be  for  a  certain  specified  purpose ;  '*'  and  it 
is  not  sufficient  to  refer  to  any  other  law  to  fix  such  purpose.-"  So,  no 
appropriation  can  be  made  under  the  title  of  "  contingent " ;  -'  all  must 
specify  the  sum  appropriated,-^  and  none  may  last  six  months  be- 
yond the  next  meeting  of  the  Legislature.^^  No  moneys  shall  be 
issued  out  of  the  treasury  but  for  the  necessary  defence  and  support 
of  the  State  government  and  the  protection  of  the  inhabitants.-* 

1  Ala. ;    La.  57 ;    Miss.  68 ;  Okla. ;        ''  Mo. 
Wy.  3,  22.    See  also  §  306.  ''  Cal.,  Ga. 

2  Mon.  5,  21.  "  Mo. 

3  N.  D.  60.  15  N.  Y.  3,  22. 

*  Ala.  71;    Ark.  5,  30;    Col.  5,  32;  ""  Ala.  71;    Fla.  3,  30;    Ga.  3,  7,  9; 

Ga.  3,  7,  9;    Miss.    69;    Mon.   5,   33;  La.  55;   Miss.  69;   Okla.  1,  16;   Pa.  3, 

N.  D.  62;  Pa.  3,  15;  S.  D.  12,2;  Wy.  15;    S.  D.  12,  3. 

3,  34.  "  Del.  8,  2. 

'  Cal.  4,  29;    La.  55;    Neb.  3,  19;        '«  Ala.;  Ark.  5,  30;  Cal.  4,  34;  Col. 

Ore.  9,  7.  5,  32  ;    Ga. ;    La. ;    Miss. ;    Mon. ;    Pa. ; 

«  Ala. ;  Col. ;  Ga. ;  La. ;  Miss. ;  Mo.  N.  D.  62  ;   S.  D. ;   Wy.  3,  33. 

4,  43 ;  Mon. ;  N.  D. ;  Pa. ;  S.  D. ;  Wy.  '»  Ark.  5,  29 ;  Cal. ;  La.  56 ;  Mo.  10. 
'  Mo.  19;  N.  Y.  3,  21;  Okla.  5,55;  S.  C. 
»  Ala.,   Col.,  Ga.,   La.,  Miss.,   Mo.,  4,  23. 

Mon.,  N.  D.,  Pa.,  S.  D.,  Wy.  ^°  Mo.,  N.  Y. 

«  La.  2'  La. 

»"  Cal. ;     111.    4,    16 ;     Neb. ;  Ore. ;        -  N.  Y. 
W.  Va.  6,  42.  -'  Miss.  64.     See  also  §  300. 

"  Mo.  '*  Mass.  2,  2,  1,  11 ;  N.  H.  2,  56. 


262  THE    STATE   CONSTITUTIONS  [BOOK   III 

In  one  the  rjcncral  appropriations  (§  ol  1 )  must  be  made  first,  and 
take  precedence  of  any  others.' 

§  313.  Voi'nuj. — The  Constitutions  of  several  provide  tliat  a 
bill  appropriating  money  or  projx'rty  for  private  or  local  purposes 
must  receive  a  vote  of  two  thirds  of  the  elected  members  of  each 
house.-  So,  in  two,  an  appropriation  for  charitable  or  educational 
institutions  not  under  the  absolute  control  of  the  State.'  In  two, 
a  bill  appropriating  money  for  extraordinary  purposes  (not  included 
in  §§  311,  335)  requires  a  two-thirds  vote  in  each  house.*  The  yeas 
and  nays  must  always  be  entered  on  the  journal,  on  the  passage  of 
a  bill  appropriating  money ;  ^  and  three-fifths  of  each  house  are 
necessary  to  a  quorum.*'  So,  in  two,  such  act  must  be  voted  for  by 
a  majority ''  or  two  thirds  of  the  members  *  elected  to  each  house, 
or  of  three  fifths  of  those  present."  So,  any  act  releasing,  discharg- 
ing, or  commuting  any  claim  or  demand  of  the  State  '"  must  have 
a  majority  vote  of  members  elected,  or  of  a  quorum  of  three  fifths, 
as  above." 

§  314.  Tax  Bills.  —  The  Constitutions  of  several  States  re- 
quire that  every  law  imposing  a  tax  shall  state  distinctly  the  object 
of  the  same,  to  which  only  it  shall  be  applied.''  So,  in  a  few,  of  a 
bill  creating  a  debt.''  And  it  is  not  sufficient  to  refer  to  any  other 
law,  to  fix  such  object.'* 

In  several,  all  taxes  must  be  levied  and  collected  by  general  laws.^^ 

In  two,  a  bill  imposing  a  tax  must  receive  the  necessary  vote  in  a 
quorum  of  three  fifths  of  each  house,  to  be  entered  in  the  journal 
(as  in  §  313) ; '"  and  in  one  of  a  majority  of  a  quorum  of  two  thirds 
of  the  elected  members,  in  the  house.'^  In  one  other,  it  must  be 
read  three  several  times  in  each  house,  and  pass  the  tliree  readings 
on  different  days,  the  yeas  and  nays  of  the  second  and  third  read- 
ings entered  in  the  journal.'^     In  others,  a  bill  imposing  a  tax  for 

»  Mo.  4,  43.  4;    Ky.  180;    Mich.  14,  14;    N.  C.  5, 

2  lo.  3,  31;  Mich.  4,  45;  Miss.  60;  7;  N.  D.  175;  N.  Y.  3,  24;  O.  12,  5; 
N.  Y.  3,  20;  R.  I.  4,  14.  Okla.  10,  19;    Ore.  9,  3 ;    S.  C.  10,  3; 

3  Ala.  73;  Pa.  3,  17.  S.  D.  11,  8;  Va.  50;  Wash.  7,  5;  Wy. 
*  Ark.  5,  31 ;    S.  D.  12,  2.    See  also    15,  13.     See  also  §  330. 

§  314.  '^  Col.  11,  4;   Ga.  7,  4,  1 ;   Ky.  178; 

'  Ga.  3,  7,  12 ;  N.  Y.  3,  25 ;  Wis.  8,  8.    N.  Y.  7,  4 ;  Nev.  9,  3  ;  Pa.  9,  5. 

«  N.  Y.,  Wis.  "  lo.,  Mich.,  N.  Y.,  Va. 

■>  Ky.  46;  Miss.  64;  Va.  50.  '^  Col.  10,  3;   Ga.  7,  2,  1 ;   Ky.  171; 

«  S.  D.  12,  2.  Mo.  10,  3 ;    Pa.  9,  1 ;    Tex.  8,  3.     See 

»  Miss.  70.  §  395. 

"  Va.  50.     See  also  §  304.  >«  N.  Y.  3,  25 ;  Wis.  8,  8. 

"  N.  Y.  "  Vt.  2,  9. 

»2  Ark.  16,  11;    lo.  7,  7;    Kan.  11,       i»  N.  C.  2,  14. 


TART   III]  LEGISLATION  263 

extraordinary  objects  (not  included  in  §  335)  requires  a  two-thirds 
vote  in  each  house/  or  a  majority  of  the  members  elected.^ 

§  315.  State  Debt  Bills.^  —  Bills  providing  for  a  loan  to  the  State 
or  creating  a  State  debt  require  the  assent  of  two  thirds  of  the  elected 
members  of  each  house,*  or  of  three  fourths/  or  of  a  majority  of 
members  elected,"  or  of  a  majority  of  members  present ;  but  three 
fifths  are,  in  such  case,  necessary  to  a  quorum  (as  in  §  313).^  They 
must  be  read  three  times,  like  tax  bills  (see  §  314).^  The  law  must 
state  the  purpose  for  which  the  money  is  borrowed.^ 

§  31G.  State  Aid  Bills.  —  In  four  States  the  Legislature  ^°  has  no 
power  to  give  or  lend  the  credit  of  the  State  in  aid  of  any  person  or 
corporation,  unless  the  law  be  approved  by  direct  vote  of  the  peo- 
ple." So,  law  creating  a  State  debt  must  be  approved  by  the  people 
at  a  general  election ;  '^  and  in  South  Carolina  it  must  receive  a  two 
thirds  vote. 

Article  32.     Appropriations  '^ 

§  320.  Warrants,  etc.  —  By  the  Constitutions  of  most  States, 
no  money  shall  be  paid  out  of  the  treasury  except  upon  appropria- 
tions duly  made  by  law  specifying  the  purpose,  etc.  (see  Art.  31).^* 
And  there  must  be  warrants  drawn  by  the  proper  officer.  ^^    And  in 

*  Ark.  5,  31.  in  1665  under  Charles  II.  Since  then 
-  Va.  it  has  been  "an  undisputed  principle, 
^  See   also    §  314.     For  temporary    recognized  by  frequent,  and  at  length 

loans,  see  §  360.  constant     practice,"     that     "suppUes 

*  Minn.  9,  5.  granted  by  parUament  are  only  to  be 

*  Del.  8,  3.  expended  for  particular  objects  speci- 
«  Kan.  11,  5;  Wis.  8,  6.  ficd  by  itself."  (Hallam,  Const.  Hist., 
^  N.  Y.  3,  25;  Wis.  8,  8.  vol.  ii.  p.  356.) 

«  N.  C.  2,  14.  '*  Ala.  72 ;  Ark.  5, 29 ;  16, 12 ;  Ariz.* 

«  Del. ;  Mon. ;  N.Y.  7, 5 ;  Okla.  10, 16.  Bill  of  Rts.  25 ;  Cal.  4,  22 ;  Col.  5,  33 ; 

»»  Compare  §  326.     Also  Art.  36.  Del.  8,  6  ;   Fla.  9,  4  ;   Ga.  3,  7,  11 ;   Ida. 

"  Ark.    10,  6;    Ky.  50;   N.  C.  5,  4;  7,  13;   111.4,  17;   Ind.  10,3;   lo.  3,  24 ; 

S.  C,  10,  11.            '  Kan.  2, 24;   Ky.  58,  230;   La.  45;  Md. 

'-  Ky. ;   Mon.  13,  2;   S.  C.    See  also  3,32;  Me.  5,  4,  4;  Mich.  14,  5;  Minn. 

§§309,361.  4,12;  9,9;  Miss.  60;  Mo.  4,  43  ;  Mon. 

''  See  U.  S.  C.  1,  9.    The  appropria-  5,  34;    13,  2;   N.  C.  14,  3;  N.  D.  186; 

tion  of  suppUes  to  objects  specified  in  Neb.  3,  22 ;   Nev.  4,  19 ;   N.  J.  4,6,2; 

the  law  dates  from  1353,  but  was  only  N.  Y.  7,  8 ;  O.  2,  22  ;  Okla.  5,  55 ;  Ore. 

put  in   practice   occasionally,   and   at  9,  4;   Pa.  3,  16;   S.  C.  10,  9;   S.  D.  11, 

long  intervals.    An  account  of  the  ex-  9 ;    Tenn.  2,  24 ;   Tex.  8,  6 ;    Va.  186 ; 

penditure  of  the  last  subsidy  was  re-  Vt.  2,  17;    Wash.  8,  4;   W.  Va.  10,  3; 

quired    from    Richard    II;     and    the  Wis.  8,  2;   Wy.  3,  35;    16,  7.     So  in 

principle  that  an  appropriation  should  U.  S.  C.  1   9,  (7). 

be  diverted  to  no  other  purpose  was  "  Ala. ;  Cal. ;  Col. ;   111. ;  Mass.  2,  2, 

expressly    asserted    by    the    Commons  1,11;  Mo.  10,  19;  Mon.;  Neb.;  N.  D. ; 

under  Henry  VI,  and  finally  vindicated  N.  H.  2,  55 ;  Pa. ;  S.  D. ;  W.  Va. ;  Wy. 


2C4  THE   STATE   CONSTITUTIONS  [BOOK    III 

a  few  States,  no  appropriation  can  be  made  for  a  longer  term  than 
two  years;'  so  in  otliers,  the  warrant  must  be  issued  within  two 
years  -  or  two  and  a  half  years  of  the  act  of  appropriation.^ 
INIoney  raised  by  taxation,  loan,  or  assessment  for  any  purpose 
shall  not  be  diverted  to  any  other  purpose  except  by  authority  of 
law." 

No  appropriation  shall  be  made,  nor  any  expenditure  authorized, 
by  the  Legislature,  whereby  the  expenditure  of  the  State  during 
any  fiscal  year  shall  exceed  the  total  tax  then  provided  by  law,  and 
applicable  to  such  appropriation  or  expenditure,  unless  the  Legisla-  , 
ture  making  such  appropriation  shall  provide  for  levying  a  sufficient 
tax,  not  exceeding  the  rates  allowed  in  [§  33G],  to  pay  such  appro- 
priation or  expenditure  within  such  fiscal  year.  This  provision  shall 
not  apply  to  appropriations  or  expenditures  to  suppress  insurrec- 
tion, defend  the  State,  or  assist  in  defending  the  United  States  in 
time  of  war.^ 

§  321.  State  Accounts.  —  By  the  Constitutions  of  most  States, 
a  regular  statement  and  account  of  receipts  and  expenditures  of 
public  moneys  must  be  published  annually,"  semi-annually,^  or  after 
every  session  of  the  Legislature,  with  the  laws,^  or  in  such  manner 
as  by  law  directed.' 

§  322.  Private  Appropriations,  Claims,  and  Debts.  —  The  Con- 
stitution of  Illinois  provides  that  the  Legislature  shall  make  no  ap- 
propriation of  money  out  of  the  treasury  in  any  private  law.^''  So, 
in  Texas,  that  no  appropriation  for  private  or  individual  purposes 
shall  be  made."  In  Mississippi,  no  law  granting  a  donation,  etc. 
without  a  two-thirds  vote  of  members  elected  in  each  house. '^  So, 
in  several  States,  no  appropriation  of  money  or  grant  of  property 
can  be  made  by  the  State  to  any  individual  or  corporation,  municipal 
or  otherwise.'^     And  by  the  Illinois  Constitution,  the  Illinois  and 

»  Ark.,   Kan.,  La.,  Mo.,  Mon.,  O.,  «  Cal.  4,  22;    Fla.  3,  19;    Ga.  3,  7 

Tex.,  Va.  11;    111.  4,  17;    Ind.  10,  4;    lo.  3,  18 

2  Kan.,  Mo.,  N.  Y.,  Wash.  Md.  3,  32;    Me.  5,  4,  4;    Mich.  18,  5 

3  Okla.  Minn.  9,  11;    Miss.  113;    Mon.  7,  19 
*  Ky.   18;    O. ;    N.  D.  130;    S.   D.  Neb.  3,  22;    Nev.  4,   19;    Ore.  9,  5 

10,  2.  S.  C. ;    Tenn.  2,  24 ;    Va.  10,  18 ;    Vt. 

«  Ida.  7,  11;  Mon.  12,  12.  2,  28. 

«  Ala.    72;     Del.    8,    6;     Ky.    230;  »  Ark.  19,  12;    Ct.  4,  21;    Kan.  15, 

N.  C.  14,  3;    S.  C.  19,  8;   S.  D.  11,  12;  5;   Mo.  10,  19;   O.  15,  3;   S.  D. ;  Tex. 

12,  4 ;  Tex.  16,  6 ;   Utah  13,  6 ;  Wash.  "  111.  4,  16.     See  also  §  395. 

7,  7;   W.  Va.  10,  3.    Quarterly:    Ga. ;  ''  Tex.  16,  6.     Compare  Art.  39. 

La. ;   Mon.  12,  13.  '-  Amt.  1906,  238. 

'  Ky.  53;  Miss,  137.  ''  Ga.  7,  16,  1;   Ky.  177;  Mo.  4,  46; 


PART   III]  LEGISLATION  265 

INIicliigan  Canal  can  never  be  sold  or  leased  but  by  vote  of  the  peo- 
ple/ Except  that  in  two  States  a  grant  of  aid  may  be  made  in  case 
of  a  public  calamity.^  And  a  right  of  way  through  public  land  may, 
in  one,  be  granted  to  a  railroad  or  canal.' 

The  Constitutions  of  two  States  provide  that  the  Legislature 
shall  not  audit  nor  allow  any  private  claim  or  account ;  *  nor,  in 
several,  authorize  the  payment  of  any  claim  against  the  State  under 
an  agreement  or  contract  made  without  the  authority  of  law.^  Or 
of  any  such  claim  against  a  municipality ;  ^  and  all  such  private  or 
special  contracts  are  void.'  Nor,  in  a  few,  can  money  be  paid  on 
any  claim  the  subject  matter  of  which  is  not  provided  for  by  pre- 
existing laws.*  Such  claim  may,  however,  be  allowed  on  a  two- 
tliirds  vote  of  the  full  Legislature."  So,  in  two,  no  special  act  mak- 
ing compensation  to  a  person  claiming  damages  against  the  State 
can  be  passed.^" 

In  ^Maryland,  the  Legislature  can  appropriate  no  money  in  pay- 
ment of  a  private  claim  over  $300  unless  proved  before  the  comp- 
troller and  reported  on  by  him."  And  in  Indiana  (10,  7),  the  State 
is  freed  from  all  liability  on  account  of  Wabash  &  Erie  Canal  stock. 

Exceptions.  But,  in  a  few  States,  the  Legislature  may  appro- 
priate for  expenses  incurred  by  private  persons  in  suppressing  in- 
surrection or  repelling  invasion.  ^^ 

The  Constitutions  of  several  States  provide  that  the  Legislature 
shall  have  no  power  to  release  or  extinguish,  or  to  authorize  the 
releasing  or  extinguishing,  in  whole  or  in  part,  any  indebtedness 
or  liability,  of  any  corporation  or  individual  to  the  State,^'  or  to 
any  municipal  corporation  therein.'*  This  follows,  practically,  in 
other  States,  from  the  provisions  of  §  395.'^ 

So,  in  several,  the  Legislature  have  no  power  to  release,  alienate, 

N.  D.  185;  Neb.  (of  land  only)  3,  18;  16,  11;    lo.  3,  31;    Nev.  4,  28;    O.  2, 

N.  J.  1,  20 ;  Tex.  3,  51.    See  also  §  326.  29 ;   Pa.  3,  11 ;  Tex.  3,  44. 

'  111.  Sep.  §  3.  9  Ark.,  Fla.,  O. 

="  Mo.,  Tex.  "  Ind.  4,  24;  Ore.  4,  24. 

3  La.  58.  "  Md.  3,  52. 

*  Ariz.*  B.  Rts.  27;    Mich.  4,  31;  '^  111.,  Miss.,  S.  D.,  W.  Va. 

N.  Y.  3,  19.  13  Ala.  100 ;  Ark.  5,  33,  12,  12 ;  Col. 

«  Cal.  4,  32;    111.  4,   19;    Ky.  58;  5,  38;    111.  4,  23;    Ky.  52;    La.  59; 

La.  47;   Miss.  96;   Mo.  4,  48;   Mon.  5,  Miss.    100;    Mo.  4,  51;    Mon.   5,  39; 

29;    S.  D.  12,  3;   Tex.  3,  53;    Utah  6,  Okla.  5,  53;    S.  D.  3,  24;   Tex.  3,  55; 

30 ;   W.  Va.  6,  38.  Utah  6,  27 ;   Wy.  3,  40. 

«  Cal.;  Ky.  162;  La.;  Tex.  "  Ala.,   Col.,    111.,    Ky.,   La.,   Miss., 

^  Cal.,    m.,   Ky.,   La.,   Mo.,   S.   D.,  Mon.,  Okla.,  Wy. 

W.  Va.  '5  Cal.,  Md. 

«  Ark.  5,  27 ;  Col.  5,  27  &  28 ;  Fla. 


266  THE   STATE   CONSTITUTIONS  [BOOK   III 

or  alter  the  lien  held  by  the  State  upon  any  railroad,'  or  as  against 
any  corporation.-  And  in  Illinois,  specially  of  the  Illinois  Central 
Railroad,  no  lien,  contract,  obligation,  or  lialnlity  in  the  original 
charter,  shall  ever  be  released  or  inij)aire(l.-' 

In  one  State,  no  claim  shall  be  allowed  (by  the  Legislature  or 
other  body  or  officers  acting  for  the  State)  against  the  State  which 
would  be  barred  by  lapse  of  time  if  made  against  a  private  person; 
except  that  a  claim  may  be  so  prosecuted  within  two  years  of  the  re- 
moval of  a  legal  disability  of  the  claimant.* 

The  Legislature  shall  not  authorize  payment  to  any  person  of 
the  salary  of  a  deceased  officer  beyond  the  date  of  his  death ; ''  nor 
retire  any  officer  on  pay,  or  part  pay,  or  make  any  grant  to  such 
retiring  officer." 

§  323.  Charitable  and  Sectarian  Appropriations.  —  The  Con- 
stitutions of  a  few  States  provide  that  no  appropriation  shall  be 
made  for  private,  charitable,  educational,  or  benevolent  purposes 
to  any  person  or  community  or  any  corporation  not  wholly  under 
the  State  authority ;  ^  nor  to  any  denominational  or  sectarian  insti- 
tution ;  *  except  by  a  vote  of  two-thirds  the  members  elected ;  ^  and 
see  §  313. 

Exceptions.  But  in  California,  grants  of  aid  may  be  made  to 
orphan  or  indigent  asylums  in  accordance  with  a  uniform  rule.  And 
in  Pennsylvania,  to  asylums  for  soldiers'  widows  or  orphans.^*' 

§  324.  Internal  Improvement.  —  By  the  Constitutions  of  a  few 
States  the  State  cannot  be  interested  in  works  of  internal  improve- 
ment, or  "engage  in  them""  except  on  two-thirds  vote  of  the 
people ;  ^'  nor,  in  Alabama,  loan  its  credit  in  support  of  such 
works ;  ^^  nor,  in  several  States,  create  or  contract  debts  for  them ;  ^* 
nor  be  a  party  to  carrying  on  such  works. ^^ 

But  the  Tennessee  Constitution  declares  that  a  well-regulated 
system  of  internal  improvement  should  be  encouraged  by  the 
Legislature.'" 

1  Ark.  5,  33 ;  Mo.  4,  50 ;  Pa.  3,  24 ;        »  Ala. 
Tex.  3,  54.  "  Pa.  3,  19. 

2  Pa.  "  Mich.;    N.  D.  185;    S.  D.  13,  1; 

3  111.  Sep.  §  1.  Wy.  16,  6. 

^  N.  Y.  7,  6.  '2  N.  D.,  Wy. 

«  Miss.  92.  "  Ala.  93. 

6  Miss.  93.  '*  Ala. ;    Md.  3,  34 ;   Minn.  9,  5 ;    O. 

'  Ala.  73;    Cal.  4,  22;    Col.  5,  34;    12,6;  Wis.  8,  10.    See,  however,  §361. 

La.  53;    Mon.  5,  35;    Pa.  3,  17 ;    S.  C.        '«  Ala. ;    Kan.    11,  8;    Md. ;    Mich. 

11,  9;    Va.  67;    Wy.  3,  36.  See  also    14,  9;  Minn.;  Wis. 

§§  44,  54.  '"  Tenn.  11,  10. 

«  Wy. 


PART   III]  LEGISLATION  267 

§  325.  Miscellaneous  Restrictions.  —  The  Constitution  of  Texas 
provides  that  the  State  shall  make  no  appropriation  for  a  bureau  of, 
or  to  encourage  or  assist,  immigration/  Not  for  war  debts  of  the 
State  or  any  county,  city,  or  town.^ 

§  326.  Loans  of  Credit,  etc.^  —  The  State,  by  the  Constitutions 
of  most  of  the  States,  cannot  lend  money  or  its  credit  to  any  indi- 
vidual, association,  or  corporation,  municipal  or  otherwise,  what- 
ever/ Except  corporations  for  religious  or  charitable  purposes; 
or  for  the  support  of  the  poor/  So,  specially,  it  cannot  loan,  etc., 
to  railroads  or  canals." 

Nor,  in  many,  can  the  State  become  a  stockholder  or  bondholder 
in  any  corporation,^  in  any  bank,^  railroad,^  or  highway.^" 

The  Constitution  provides,  in  general  terms,  that  the  State  may 
not  be  interested  in  any  private  or  corporate  enterprise,"  or  internal 
improvement.^^ 

Nor,  in  many,  can  it  assume  the  debts  of  any  (individual  or)  muni- 
cipal corporation ;  ^^  except,  in  several,  when  incurred  in  time  of 
war  for  the  benefit  of  the  State." 

Nor,  in  Tennessee,  can  any  bonds  of  the  State  be  issued  to  any 
railroad  which  is  in  default  in  paying  interest  on  bonds  previously 
loaned  to  it,  or  has  sold  them  for  less  than  par.^^ 

Limitations.  But  in  North  Carolina,  the  credit  of  the  State 
may  be  so  loaned,  contrary  to  the  above  rules,  upon  vote  of  the 
people. 

§  327.     Money.  —  The  Constitution  of  Texas  provides  that  the 

1  Tex.  16,  56.     See  §  202.  Cal.  12,  13 ;    Col. ;    Fla. ;    Ga. ;    Ida. 

2  Va.  186.    See  U.  S.  C.  Amt.  14.  Ind. ;    lo.  8,  3;    Ky.;.  La.;    Mich.  14 

3  Compare  §  316.     See  also  Art.  36.  8;    Miss.;    Mo.  4,  49;    Mon. ;    N.  D. 
*  Ala.  93;    Ark.  16,  1;    Cal.  4,  31;  Nev. ;    O. ;    Okla. ;    Ore.   11,  6;    Pa. 

Col.  11,  1-2;    Del.  8,  4;    Fla.  9,  10;  S.   C. ;     S.   D. ;    Tenn. ;     Utah;     Va. 

Ga.  7,  5,  1 ;   Ida.  8,  2  ;   lU.  4,  20 ;   Ind.  Wash. ;  W.  Va. ;  Wy. 

11,  12;    lo.  7,  1;    Ky.  177;    La.  58;         «  III.,  Ind.,  Kan.,  Mo.,  Tenn.     See 

Md.  3,  34 ;    Me.  9,   14 ;    Mich.   14,  6 ;  §  530. 

Minn.  9,   10;    Miss.  258;    Mo.  4,  45;         «  Ky. 

Mon.  13,  1 ;    N.  C.  5,  4 ;    N.  D.  185 ;        >°  Ky. 

Neb.  14,  3;    Nev.  8,  9;   N.  J.  4,  6,  3;        "  Ala.,  La.,  Va.     See  §  324. 

N.Y.  7,1;  8,  9;  0.8,  4;  Okla.  10,  11;        ^^  Va. 

Pa.  9,  6 ;  S.  C.  10.  6 ;  S.  D.  13,  1 ;  Tenn.        i^  ^rk.  12,  12 ;  Cal. ;  Col. ;  Ga.  7,  8, 

2,  31;   Terr.  U.  S.  1886,  818;   Tex.  3,  1;    Ida.  12,  3;    111.;    Ind.  10,  6;    lo. ; 

50;    Utah  6,  31;    Va.  185;   Wash.  12,  Ky.  176;   La.;  Mon.  13,  5;  Nev.  9,  4; 

9;    8,  5;    W.  Va.  10,  6;    Wis.  8,  3;  O.  8,  5;  Okla.  10,  14;   Ore.  11,  8;   Pa. 

Wy.  16,  6.  9,  9 ;  S.  D. ;  Tex. ;  Utah  14,  6 ;  W.  Va. ; 

«  N.  D.,  S.  D.  Va. 

«  111.    Sep.    §3;    Wy.   3,    39;     10,        '"  Ark.,  Ga.,  Ida.,  lo.,  Ky.,  Nev.,  O., 

10  (5).  Okla..  Ore.,  Pa.,  S.  D. 

'  Ariz.*  Bill  of  Rts.  27 ;  Ark.  12,  7 ;        "  Tenn.  2,  23. 


268  THE    STATE    CONSTITUTIONS  [BOOK    III 

State  shall  have  no  power  to  issue  treasury  notes  or  warrants  in- 
tended to  circulate  as  money.^ 

§  328.  Embezzlement,  etc.  (See  §  15G.) — The  Legislature  shall 
provide  by  law  for  the  establishment  and  maintenance  of  an  efhcient 
system  of  checks  and  balances  between  the  officers  of  the  Executive 
Department,  and  all  commissioners  and  superintendents,  and  boards 
of  control  of  State  institutions,  and  all  other  officers  entrusted  with 
the  collection,  receipt,  custody,  or  disbursement  of  the  revenue  or 
moneys  of  the  State  whatsoever.^ 

Article  33.    Taxation 

§  330.  General  Principles.^  —  In  the  Constitutions  of  several 
States  it  is  declared  that  every  member  of  society  is  bound  to  con- 
tribute his  proportion  to  the  expenses  of  the  government;  but  no 
part  of  his  property  can  be  taken  without  his  own  consent  or  legisla- 
tive authority.* 

So,  in  many,  no  tax,  impost,  duty,  or  charge  can  be  levied  except 
in  pursuance  of  a  law ;  ^  or  by  consent  of  the  people,^  or  their  repre- 
sentatives in  the  Legislature.^  Taxation  can  be  for  public  purposes 
only ;  ^  and  must  be  levied  under  general  laws.^ 

^  Tex.  16,  7.     See  U.  S.  C.  1,  10.  power  is  subject  to  the  broad  limita- 

"  Okla.  5,  60.  tion  that  it  may  be  exercised  only  by 

2  Compare  Art.  9.     The  history  of  Congress  and  to   pay  the   debts  and 

English    taxation,     as    distinct    from  provide  for  the  common  defence  and 

feudal  aids,   begins  with  the  imposi-  general  welfare  of  the  United  States; 

tion  of  the  Dane-geld,  a.  d.  1008.    The  and   that   all   indirect   taxes   shall   be 

first  tax  on  personal  property  was  the  uniform  throughout  the  United  States, 

Saladin  tithe,  a.  d.  1188  (see  Historical  and  direct  taxes,  if  any,  imposed  upon 

Digest).      The    English    constitutional  the  States  according  to  their  respective 

principles  affecting  taxation  are  fully  numbers,  now  excluding  only  Indians 

discussed   in    Book    I. ;    in   substance,  not  taxed. 

that  no  tax,  direct  or  indirect,  shall         *  Del.    8,    1;     Mass.     1,    10;   Md. 

be  imposed  upon  the  people  or  upon  Decln.  of  Rts.  14  &  15;  N.  H.  1,  12; 

their  property,  real  or  personal,  wliich  Okla.  10,  14;    Va.  1,  6;   Vt.  1,  9;  Wy. 

has  not  been  voted  or  assented  to  by  15,  13 ;  13,  3. 

the  House  of  Commons;    second,  that         *  Ark.  16,  11;    Fla.  9,  3;    Kan.  11, 

all   taxes   must   be    for   the    common  4 ;    Ky.  171 ;    Mo.  10,  1 ;    Mon.  12,  16 ; 

benefit   or  the   general   advantage   of  N.  D.  175 ;    O.  12,  5 ;    Ore.  9,  3 ;    S.  C. 

the  Realm.    To  these,  American  Con-  8,  3 ;   10,3;  Wash.  7,  5. 

stitutional  Law  may  be  said  to  have        "  Mass.  1,  23;    Me.  1,  22;    N.  C'l, 

added    a   tliird    principle,    that   taxes  23;  N.H.I,  28;  Ore.  1,32;  S.C.I,  7; 

shall   be   proportionate   and   uniform.  S.  D.  6,  17;   Wy.  1,  28. 

The  Federal  Government  has  practi-         ^  La.     224 ;      Mass. ;      Md. ;      Me. ; 

cally  no  power  of  direct  taxation ;  this  N.  C. ;  N.  H. ;  Ore. ;  S.   C. ;  S.  D. ;  Wy. 

remains  with  the  people  of  the  States.         *  Ky.  171 ;  Minn.  Amt.  1907,  p.  18; 

Otherwise  the  powers  of  taxation  be-  9,  1 ;   S.  C. ;  S.  D.  10,  2.    See  note  1. 

long  both  to  the  Federal  and  the  State         *  Ida.    7,   5 ;     Ky. ;    Mon. ;    Okla. ; 

governments;      though     the     Federal  Va.  168. 


PART    III]  LEGISLATION  269 

And  in  Vermont,  previous  to  any  law  for  a  tax,  the  purpose  for 
which  the  tax  is  levied  ought  not  to  appear  of  more  importance  to  the 
community  than  the  money  would  be  if  not  collected. 

By  the  Constitution  of  Arkansas,  "the  State's  ancient  right  of 
eminent  domain,  and  of  taxation,  is  expressly  and  fully  conceded."  ^ 
In  Georgia,  taxation  is  declared  to  be  a  sovereign  right  of  the  State, 
absolutely  inalienable.^ 

In  several,  the  Legislature  has  no  power  to  release  (in  Louisiana, 
postpone)  the  inhabitants  of,  or  property  in,  any  town  or  county  from 
payment  of  State  or  county  taxes ;  ^  except  in  case  of  great  public 
calamity,*  and  by  a  two-thirds  vote  of  each  house.^  So,  in  others, 
the  power  to  tax  shall  not  be  surrendered  or  suspended  by  any  act, 
contract,  or  grant  to  which  the  State  is  a  party ; "  so,  specially,  of 
the  power  to  tax  corporations  and  their  property.  ^ 

And  in  several,  no  power  to  levy  taxes  can  be  delegated  to  indi- 
viduals or  private  corporations.^    See  §  340. 

In  Illinois,  the  Constitution  provides  that  the  specification  therein 
of  the  objects  and  subjects  of  taxation  shall  not  deprive  the  General 
Assembly  of  the  power  to  require  other  subjects  or  objects  to  be 
taxed  in  such  manner  as  may  be  consistent  with  the  principles  of 
taxation  fixed  in  the  Constitution.^ 

§  33L  Taxable  Property.  —  In  many  States,  the  Constitution 
declares  that  all  property,  real  and  personal  and  mixed,  is  taxable.'" 

In  others,  taxes  "shall  be  levied  upon  such  property  as  is 
described  by  law."  "  "Polls,  estates,  and  other  classes  of  property, 
including  franchises  and  property  when  passing  by  will  and 
inheritance."  '' 

'  Ark.  2,  23.  clause  of  the  Federal  Constitution,  and 

^  Ga.  4,  1,  1.  prevent    the   granting    or    bargaining 

^  Cal.  11,  10;   Col.  10,  8;    111.  9,  6;  away  of  the  sovereign  right  of  taxa- 

La.  212;    Mo.  10,  9;    Neb.  9,  4;   Tex.  tion,  in  conformity  with  the  views  of 

8,  10.  a  persistent    minority   in    the    United 

*  La.,  Tex.  States  Supreme  Court. 

«  Tex.  8  Ala.  212;   Cal.  11,  13;   Col.  5,  35; 

«  Cal.  13,  6;    Ga. ;    Ida.  7,  7;    Ky.  Ga.  4,  1,  1 ;   Pa.  3,  20.   Compare  §  340. 

175;    Me.  9,  9;    Minn.;    Mon.  12,  6;  »  111.9,2. 

N.  D.  178;   Okla.  10,  5;   Wash.  11,  9;  "  Cal.  13,  1;    Col.  10,  3;    Fla.  9,  1; 

Wy.  15,  14.     And  this  applies  also  to  Ind.  10,  1 ;   Ky.  174 ;  Minn.  9,  3 ;  Mon. 

municipal  taxation  (N.  D.).  12,  16;    N.  C.  5,  3;    N.  D.  176;    Nev. 

^  Ark.  16,  7;  Col.  10,  9;  Ga.  7,  2,  5;  10,  1;    O.  12,  2;    S.  C.  10,  13;    Tenn. 

Ida.  7,  8 ;    La.  228 ;    Miss.  182 ;    Mo.  2,  28 ;   Utah  13,  2 ;   Va.  168 ;  Wash.  7, 

10,  2 ;    Mon.  12,  7 ;    Pa.   9,  3 ;    S.  D.  1 ;  W.  Va.  10,  1. 

113;  Tex.  8,  4;    Va.  64;   Wash.  7,  4.  »  Ida.  7,  3;  Mich.  14,  11;  Wis.  8,  1. 

These  two  provisions  show  the  desire  ^-  N.  H.  2,  6. 
to  escape  the  impairment  of  contract 


270  THE    STATE    CONSTITUTIONS  [nOOK    III 

In  one,  the  personal  property  of  residents  of  the  State  is  taxable  in 
the  county  or  city  where  the  resident  hoiici  fide  resides  for  the  greater 
part  of  the  year;  and  not  elsewhere,  exccj)t  goods  and  chattels  "per- 
manently located."  '  But  in  two,  all  property  is  to  be  assessed  where 
situated  (except  rolling  stock,  etc.,  of  railroads).'' 

Land  and  the  improvements  thereon  are  to  be  separately  assessed.' 
Mortgages,  except  mortgages  by  railroads,  etc.,  are  taxed  to  the 
owner,  and  the  property  less  the  value  of  the  mortgage  to  the 
mortgagor. "^    INIortgages  may  be  taxed  where  the  huui  is." 

In  Texas,  all  property  of  railroads  in  towns  shall  bear  its  share  of 
municipal  taxation; "  and  all  property  of  railroads  shall  be  taxed.' 

The  property  of  all  corporations  shall,  by  several  State  Constitu- 
tions, be  subject  to  taxation  the  same  as  that  of  individuals ;  **  so  of 
corporations  for  pecuniary  profit  only.^  But  this  shall  not  be 
construed  so  as  to  authorize  the  taxation  of  the  stocks  of  any  com- 
pany or  corporation  when  the  property  of  such  company  or  cor- 
poration represented  by  such  stocks  is  within  the  State  and  has 
been  taxed. ^'^ 

"The  Legislature  shall  provide  for  taxing  all  moneys,  credits,  in- 
vestments in  bonds,  stocks,  joint  stock  companies,  or  otherwise ;  and 
also  for  taxing  the  notes  and  bills  discounted  or  purchased,  moneys 
loaned  and  all  other  property,  effects  or  dues  of  every  description,  of 
all  banks  and  of  all  bankers,  so  that  all  property  employed  in  bank- 
ing shall  always  be  subject  to  a  taxation  equal  to  that  imposed  on  the 
property  of  individuals."  " 

In  Maryland,  the  Legislature  are  to  provide  for  the  taxation  of  the 
revenue  of  foreign  corporations  doing  business  in  the  State.'- 

1  Md.  3,  51.  Del.,  Mass.,  Me  ,  N.  J.,  N.  Y.,  N.  C, 

-  Cal.  13,  10;  Tex.  8,  11.  Tex.,    Vt.,   Wash.,    W.    Va.      See  Re- 

^  Cal.  13,  2;   Wy.  15,  1;   Del.  8,  7.  port  Committee  on  Corporation  Laws, 

*  Cal.  13,  4.  Massachusetts,  1903,  pp.  273-279. 

s  Md.  Amt.  1898.  »  Ala.,  lo. 

«  Tex.  8,  5.  "  Mon.  12,  17. 

'  Mon.;  Tex.  8,  8.    See  §  540.  "  S.  D.  11,  4. 

«  Ala.  217;    Col.    10,   10;    Fla.    16,  '^Md.3,58.    See  in  §  509.     There  is 

16;    Ida.  7,  8;    lo.  8,  2;    Ky. ;    Miss,  no  Constitutional  limit  to  the  power  of 

181;  Mon.  12,  7;  Nev.  8,  2;   0.13,4;  imposing  a  franchise    tax  on  foreign 

S.  D.  11,  2;    Utah  13,  10;   Wash.  7,  3.  corporations,    even    to    the    point    of 

See  §  330.     This  provision  would  not,  driving  them  from  the  State;  property 

however,  be  held  to  preclude  franchise  taxes,  however,  must  be  identical  with 

taxes,  or  taxes  on  the  capital  stock,  those  imposed  on  home  corporations, 

and  the  imposition  of  such  in  addition  In    1903    such    taxes    existed    in    ten 

to  a  property  tax  is  not  double  taxa-  States:  Ala.,  Col.,  Mass.,  N.  C,  N.  Y., 

tion.     Already,  by  the  year  1903,  such  O.,  Tex.,  Vt.,  Wash.,  W.  Va.      These 

taxation  existed  by  law  in :  Ala.,  Col.,  principles   do    not,    however,    hold  of 


PAllT    III]  LEGISLATION  271 

In  three  States,  mines  and  mining  claims  may  not  be  directly 
taxed,  but  only  their  proceeds.^  Coal  lands  not  being  mined  are 
to  be  taxed  according  to  value.-  All  mines  are  to  be  taxed  ac- 
cording to  gross  product,  and  the  land  (except  improvements)  is 
exempt.^  So,  the  net  proceeds;  but  the  land  is  taxed  at  the  price 
paid  the  United  States.*  There  is  a  special  and  separate  assess- 
ment of  coal  or  mineral  land.'' 

The  Legislature  may  provide  for  a  special  mode  of  valuation  and 
assessment  for  railroads,  and  railroad  (and  other  corporate) 
property." 

§  332.  Exemptions.  —  The  following  are  the  constitutional  ex- 
emptions from  taxation  (there  are  these  and  many  others  existing 
by  statutes;  indeed  the  older  States  have  not  deemed  it  advisable 
to  put  such  matters  in  the  Constitution)  : 

(A)  Burying-grounds.'' 

(B )  Public  schoolhouses ;  ^  school  buildings  and  apparatus ;  ^ 
libraries  and  grounds  used  for  school  purposes.  ^° 

(C)  Churches;  ^^  church  property  used  for  religious  purposes ;^^ 
public  hospitals;  ^^  parsonages.^* 

(D)  Academies  ;^^  colleges,  universities,  and  seminaries  of  learn- 
ing; ^^  public  libraries;  ^^  books,  paintings,  and  statuary,  kept  in  a 
free  public  hall;  ^^  institutions  of  purely  public  charity;  ^^  of  educa- 
tion ;  -"   or  free  museums.-^ 

interstate  commerce  corporations.    See  "  Ala. ;  Ark. ;  Ga.  ^  c  j  La_  j  S.  C. ; 

Mass.  Corporation  Committee  Report,  Tex. 

Digest  by  F.  J.   Macleod,   p.  295,   ut  ^°  Ark. ;     Col. ;     Ga.    b   c  ;     i,a.    c  ; 

supra.  Minn.  1907,  ix;  N.  D. ;  S.  C. ;  Va. 

'  Col.  10,  3 ;  Nev.  10,  1 ;  Wy.  15,  3.  "  Ark. ;  Ga.  b  c ;  Ky. ;  La.  c ;  Minn. ; 

See  §  519.  Mon. ;    O.   b;     Pa.   b;     s.    C. ;    Tex.; 

2  Wy.  15,  2.  Utah ;  Va. ;  Wy. 

^  Wy.  15,  3.  1-  Cal.    1899,    p.    447 ;     Col. ;     Ky. ; 

*  Mon.  12,  3 ;  Utah  14,  4.  Minn. ;  Utah ;  Wy. 

«  Va.  172.  "  Minn.,  Mon.,  S.  C. 

«  Ky.  182;  Miss.  112.    See  §  519.  "  Ky. ;   La.  1902,  129;   Va. ;  Wy. 

^  Ala.  91;  Ark.  16,  5;  Col.  c  10,  5;  ''  Ga.  b  c;   Minn.;   S.  C. ;   Va. 

Ga.  b  c  7^  2,  2  ;  111.  b  9,  3 ;   Ky.  c  170 ;  >«  Ga.  b  c ;  La.  <= ;  Minn. ;  S.  C. ;  Va. 

La.    c   230 ;    Minn.  9,   3 ;    Mo.   10,  6 ;  ''  Cal.  1893,  p.  658 ;  Col.  10,  4 ;   Ga. 

Mon.  c  12,  2 ;    N.   C.  b   5,    5 ;    N.   D.  b ;  Ida.  7,  4 ;  Ky. ;  La. ;  Mon. ;  Okla. ; 

170;   Neb.  b  9,  2;   O.  b  12,  2 ;   Okla.  S.  C. ;  Utah;  Va. ;  Wy. 

10,  6 ;    Pa.  b  9,   1 ;    S.  C.  10,  4 ;    S.  D.  '«  Ga.  b  c ;  Ky. ;  La.  c. 

11,  6;    Tex.  beg,    2;    1905,  p.  410.        '«  Ga.  b  c;  La.;  Minn.  ;0.  b;  Pa.  c; 
Utah  13,  3 ;  Va.  c  183 ;   W.  Va.  b  10,    S.  C. ;  Tex.  b. 

1;     Wy.  c  15,  12  a.  :o  Ky    c. 

»  Cal.  13,  1;    Col.;    La.  <=;    Minn.;       ^i  Cal.,  Okla. 
O.  b ;  Okla. ;  S.  C. ;  Tex 


272 


THE   STATE   COXSTITUTIOXS 


[book  TTI 


(E)  Public  property  used  exclusively  for  any  public  purpose;^ 
or  for  any  numicipal  purpose;  ^   all  public-  j)r()perty.^ 

(F)  So,  any  property  (real  or  pei\s(>nal),  held  for  educational 
or  scientific  '  or  literary  purposes;''  or  charita])le  purposes;"  or  re- 
ligious purposes;'  by  agricultural  or  horticultural  societies.^  So, 
lots  in  towns,  within  one  mile  of  the  limits,  to  one  acre  in  extent ;  and 
lots  one  mile  or  more  distant  from  towns  to  five  acres  in  extent,  with 
buildings  thereon,  used  exclusively  for  religious,  school,  or  purely 
charitable  purposes ; "  for  lodge  purposes ; '"  for  public  monuments 
or  historical  collections." 

(G)  In  several,  lands  the  property  of  the  United  States  are  ex- 
empt;^'- all  property  exempt  by  United  States  laws;*^  all  property 
belonging  to  the  State ;"  all  property  belonging  to  the  United  States;*^ 
all  property  belonging  to  nmnicipal  corporations ;  *"  the  property 
of  religious  or  charitable  corporations,  or  of  educational  "cor- 
porations." ^' 

(II)  In  a  few  Western  States,  the  Legislature  may  exempt  for  a 
time  the  increase  in  value  of  private  lands  caused  by  the  planting 
of  hedges,  orchards,  and  forests;  ^^  so,  "a  limited  amount  of  im- 
provements on  land";^^  so,  fruit  or  vines  planted  4  or  5  years 
respectively."" 

(I)  The  personal  property  of  every  individual  is  exempt,  to  the 

'  Ark.;  Kan.  11,  1;  Ky.  170; 
Minn. ;  Nev.  b  lO,  1 ;  O.  b ;  Ore.  b  9, 
1;  Pa.  b;  Tenn.  b2,  28;  Tex.  11,  9; 
Va. ;  W.  Va.  b. 

^  Ind.  b  10,  1;  Kan.;  Va.  10,  1; 
S.  C. 

3  Ala. ;   Ga.  b  c ;   La.  c ;  Mon. 

*  Ala.  91;  Cal. ;  Fla.  b  9,  1;  111.  b 
Ind.  b;  Kan.;  La.;  Mon.;  N.  C.  b 
N.  D.;  Neb.  b;  Nev.  b;  Okla.  91 
Ore.  b;  S.  C.  b;  S.  D.;  Tenn.  b;  Tex. 
Va.  •  W.  Va.  b. 

^'ria.  b;    Ind.  b;    Kan.;    N.  C.  b 


»  Ala. ;  Mo.  b. 

»"  Va. 

"  La. 

'^  Ida. ;  Kan.  Ordinance ;  Minn.  2, 
3;  Mo.  14,  1;  Mon.;  Nev.  Ordinance; 
N.  D.  176;  Okla.;  S.  D.  115;  Utah; 
Wash.  7,  2 ;  Wis.  2,  2  ;  Wy. 

"  Cal.  13,  1 ;    Utah ;   Wash. 

"  Ala. ;  Cal. ;  Col.  10,  4  ;  Ida. ;  111 
Mo.;  Mon.;  N.  C. ;  Neb.;  N.  D 
Okla.;  S.  D. ;  Tenn.;  Utah;  Va 
Wy.;  Wash. 

''  Cal. ;  Ida. ;  Mon. ;  N.  D. ;  S.  D. ; 
Nev.  b;  Ore.;  S.  C.  b  10,  1 ;  Tenn.  b;  Terr.  U.  S.  R.  S.  18ul ;  Utah;  Wash.; 
W.  Va.  b.  Wy. 

«  Ala. ;  Ark. ;  Col. ;  Fla.  b ;  m. ;  Ind.        's 


b ;  Kan. ;  Ky. ;  Mon. ;  N.  C.  b ;  N.  D 
Neb.  b ;  Nev.  b ;  Ore.  b ;  S.  C.  b ;  S.  D. 
Tenn.  b ;  Tex. ;  Va.  b ;  W.  Va.  b. 

'  Ala.  b;  Fla.  b;  m.  b;  ind.  b 
Kan. ;  Ky. ;  N.  D. ;  Neb.  b ;  Nev.  b 
N.  C.  b ;  Okla. ;  Ore.  b ;  S.  C.  b ;  S.  D. 
Tenn.  b ;  Va. ;  W.  Va.  b. 

«  Ala. ;  111.  b ;  Mo.  b  10,  6 ;  Mon. 
Neb.  b;  S.  D. 


Ala.;  Cal.;  Col.;  Fla.  b;  Ida. 
111.  b;  Ind.  b;  La.  c;  Mo. ;  Mon. 
N.  C;  N.  D.;  Neb.;  Nev.  b  8,  2 
Okla. ;  S.  C. ;  S.  D. ;  Tex.  8,  1 ;  Utah 
Va. ;  Wash. ;  Wy. 

"  Fla.  b ;  Nev.  b. 

»«  Col.  18,  7. 

i«  Ida.  7,  2. 

20  Cal.  1893,  p.  623. 


PART   III]  LEGISLATION  273 

value  of  $200;'  $100;-  $250,  if  with  a  family  ;3  of  $1,000;* 
household  property  to  the  value  of  $500;  ^  of  $250; «  $200  of  heads 
of  families;  ^  $300;  ^  of  every  widow  or  disabled  person,  $200.^ 

(J)  Growing  crops  are  exempt.'"  So,  the  direct  products  of  the 
soil  in  the  hands  of  the  producer; "  and  of  his  immediate  vendee.'^ 
And  no  articles  manufactured  of  the  produce  of  the  State  shall  be 
taxed  otherwise  than  to  pay  inspection  fees."  Supplies  for  home  or 
farm  use  are  exempt.'* 

(K)  All  wearing  apparel  is  exempt ;  arms  for  muster;  all  house- 
hold furniture;  mechanical  instruments  of  mechanics,  and  agricul- 
tural implements  of  farmers;  libraries;  scientific  instruments;  but 
the  total  value  of  exemptions  under  this  paragraph  cannot  exceed 
$300.'^ 

(L)  Such  property  as  the  Legislature  may  except  for  the  public 
welfare.'® 

(M)  For  a  period  of  10  years  from  1900,  mining  and  manufac- 
turing property  in  factories  where  five  hands  are  employed  and  (up 
to  1904)  certain  railroads.'^  So,  railroads  constructed  between  1905 
and  1909.'^    See  also  §  331. 

(N)  Provision  shall  be  made  by  general  laws  whereby  cities  and 
towns  may  be  authorized  to  aid  and  encourage  the  establishment  of 
manufactories,  gas  works,  water  works,  and  other  enterprises  of 
public  utility  other  than  railroads,  within  the  limits  of  said  cities  or 
towns,  by  exempting  all  property  used  for  such  purposes,  from  muni- 
cipal taxation  for  a  period  not  longer  than  ten  years.'* 

(O)  The  General  Assembly  may  authorize  any  incorporated  city 
or  town  to  exempt  manufacturing  establishments  from  municipal 
taxation  for  a  period  not  exceeding  five  years,  as  an  inducement  to 
their  location.-'^  So  the  Legislature  may  grant  a  general  exemption 
from  taxation  to  manufacturing  corporations  or  enterprises  of  public 
utility  for  one  year.^' 

1  Kan.  (of  every  family);  Minn.;  "  Ky. ;  Tenn.  2,  30;  Tex.  8  19 
N.  D.;   O.  b;   S.  D.  (1879,  p.  192). 

2  Cal.  1904,  Nov.  8 ;  Okla.  '^  Tenn. 

»  Ky.  "  Tenn.  2,  30. 

*  Tenn.  "  Tex. 

«  La.  «  N.  C.  b. 

8  Ky.  170 ;   Okla. ;  Tex.  8,  1.  '«  Del.  8,  1 ;  Wash. 

'  Col.  1899,  p.  89.  "  La.  206. 

8  Wash,  b  Amt.  1900.  *«  La.  1904,  16. 

8  Fla.  9,  9.  '»  Miss.  192. 

">  Cal.,  Ky.,  Okla.  ^°  Ky.  170 ;  Okla.  10,  6. 

"  Miss.  82. 


274  THE   STATE   CONSTITUTIONS  [BOOK   III 

(P)  Cities  and  towns  may  exempt  by  ordinance,  except  for 
school  purposes,  manufactories,  for  five  years  from  tlieir  establish- 
ment, upon  majority  vote  of  all  the  qualified  electors  at  a  special 
election.'    State  or  municipal  bonds  are  made  exempt  from  taxation.^ 

(Q)  Except  as  above,  all  laws  exempting  property  from  taxation 
are,  in  several  States,  void.* 

§  333.  Taxes  Equal.*  —  The  Constitutions  of  many  States  pro- 
vide that  taxation  shall  be  "equal  and  uniform"  throughout  the 
State  or  throughout  each  municipality  levying  a  tax;'^  or  "pro- 
portional and  reasonable."  ® 

Lands  belonging  to  persons  resident  out  of  the  State  cannot,  in 
several,  be  taxed  higher  than  lands  belonging  to  residents.'' 

The  Legislature  shall  not  enact  any  law  which  will  permit  any 
person,  firm,  corporation,  or  association  to  pay  a  privilege,  license,  or 
other  tax  to  the  State  of  Alabama,  and  relieve  him  or  it  from  the 
payment  of  all  other  privilege  and  license  taxes  in  the  State.  ^ 

§  334.  Valuation  and  Assessment.  —  In  most  States  the  Con- 
stitution provides  that  all  taxes  levied  shall  be  assessed  in  exact 
proportion  to  the  value  ^  of  the  property. '"^ 

»  S.  C.  8,  8.  7,5;  Ind.  10,  1 ;  Kan.  11,  1 ;  Ky.  171 ; 

2  O.  1904,  p.  652.  La.  225;    Mich.   14,   11;    Minn.  9,   1; 

^  Ark.  16,  6;    Col.  10,  6;    Ga.  4,  2,  Miss.    112;   Mo.  10,  3;    Mon.   12,  2  & 

4;    Ky.  3;    Mo.   10,  7;    Mon.   12,   1;  11;  N.  C.  5,  3;  N.  D.  176;  Nev.  10,  1 ; 

Okla.  5,  50 ;  Pa.  9,  2 ;  S.  D.  11,  7 ;  Tex.  N.  J.  4,  7,  12 ;  Okla.  10,  5 ;  Ore.  1,  32 ; 

Notes,      (a)  See    also    §§  394,  395;  9,  1;  Pa.  9,  1 ;  S.  C.  10,  1;  S.  D.  6,  17; 

these  same  States  being  apt  to  restrict  Tenn.  2,  28 ;    Tex.  8,   1 ;    Va.   16,  8 ; 

their    legislatures'     powers    to     enact  Wash.  7,  2 ;   W.  Va.  10,  1 ;    Wis.  8,  1 ; 

special  laws,     (b)  In  these  States  the  Wy.  1,  28. 
Constitution  only   provides   that   tliis        *  N.  H.  2,  5. 

property  may    be   exempted    by   law.         '  Ida.    21,    19;     Kan.    Ordinance; 

(c)  In    these    States,    only    burying-  Minn.  2,  3 ;   Mo.  14,  1 ;   N.  D.  203  (2) ; 

grounds,     etc.,    wliich    are    not    held  Nev.   Ordinance;    Okla.    1,  3;    S.  D. 

for   personal    or   corporate    profit,    or  22  (2) ;  Terr.  U.  S.  R.  S.  1851 ;  Wash, 

are  "actually  occupied."     (S.  C.)  26,  1  (2);    Wis.  2,  2;    Wy.  Ordinance. 

*  I.  e.,  in  the  same  class  of  subjects         *  Ala.  221. 
(Col.,  Minn.,  Pa.,  Mo.,  Va.,  Ga.,  Del.) ;         *  /.  e.,   the   cash   value    (Ky.,    La., 

but  " no  one  species  of  property  can  be  Mich.,    Minn.,    N.    C,    N.    D.,   Okla., 

taxed  higher  than  another  species,  of  S.  D.). 

the    same    value"    (Ark.,    Tenn.,    W.        "Ala.  211;   Ark.;   Cal.  13,  1 ;   Ga. ; 

Va.) ;    except    Ucense   or    corporation  Ida.  7,  2;    111.  9,  1;    Ind.;    Ky.  172; 

taxes  (Mich.  1900,  p.  15).     (See,  how-  La.;   Mass.  2,  1,  1,  4;   Me.  9,  8;   Mich, 

ever,  §  339).     This  principle  generally  14,  12;   Minn.;   Miss.  112;   Mo.  10,  4; 

applies  only  to  property  taxation;  not  N.  C. ;   N.  D.  179;   Neb.  9,  1 ;   N.  H. ; 

inheritance  or  license  taxes,  or  other  N.  J.  4,  7,  12 ;   Okla.  10,  8 ;   Ore.  9,  1 ; 

excises.  S.  C.  3,  29  ;   S.  D.  11,  2  ;  Tenn. ;  Tex. ; 

'  Ala.  217;   Ark.  16,  5;    Col.  10,  3;  Utah  13,3;  Va.  169;  Wash.;  W.  Va. ; 

Del.  8,  1;   Fla.  9,  1;   Ga.  7,  2,  1 ;   Ida.  Wy.  15,  11. 


PART   III]  LEGISLATION  275 

The  Legislature  is  to  provide  for  a  just  valuation,  no  time  being 
specified.*    Every  five  years ; "    every  ten  years. ^ 

In  Louisiana,  the  assessment  of  all  property  shall  never  exceed  the 
actual  cash  value  thereof.  Taxpayers  have  a  constitutional  right  of 
testing  the  correctness  of  their  assessments  in  the  courts.  The  val- 
uation put  on  property  for  purposes  of  State  taxation  must  be  taken 
as  the  proper  valuation  for  local  taxation.* 

In  California,  cultivated  and"  uncultivated  land  of  the  same  quality 
and  similarly  situated  are  to  be  assessed  at  the  same  value ;  ^  so, 
plowing  is  not  an  improvement  to  be  taxed.^  The  value  or  rental 
value  of  the  buildings  as  well  as  the  land  must  be  included  in  all 
assessments.^  Grain  held  in  elevators,  grown  in  the  State,  may  be 
specially  taxed.  ^ 

§  335.  Purposes  of  Taxation.  —  (See  §  330,  note  *).  The  Con- 
stitutions of  many  States  prescribe  certain  limits  to  the  taxing  power. 
Thus  taxes  can  be  levied,  only  for  the  ordinary  expenses  of  the  State 
Government  and  Public  State  Institutions ;  ^  for  the  costs  of  col- 
lecting the  revenue ;  ^^  to  pay  any  deficiency  in  the  finances  of  the 
previous  year;"  to  pay  the  interest  on  the  State  debt; '"to  pay 
the  principal  of  the  State  debt.'^  So,  in  Texas,  for  the  benefit  of  a 
sinking  fund,  which  (tax?)  shall  not  be  more  than  two  per  cent 
of  the  State  debt.  Special  taxes  (§  337)  only  are  levied  for  these 
purposes,'*  or  for  educational  purposes  generally.'^  For  the  support 
of  free  schools;'®  to  suppress  insurrection,  repel  invasion,  and 
defend  the  State  in  time  of  war;'^  to  protect  the  frontier,'®  for 
the  necessary  defence  of  the  government;'^  for  the  erection  and 
repairs  of  public  buildings ;  ^°  for  maintaining  and  erecting  levees ;  ^' 

»    Col.  10,  3 ;    Fla. ;   Ida.  7,  5 ;  Mon.        '»  Tex. 

12,  1 ;    Nev.  10,  1 ;    R.  I.  4,  15 ;  S.  C.        "  Minn. ;    Nev. ;    Okla.  10,  3 ;    Ore. 

10,  1;    Utah;    Wash.;    Wy.  9,6;  S.  C. ;  S.  D.;  Wash.  7,8;  W.  Va; 

2  Mich.  14,  13;  N.  H.  2,  6;  Va.  171.    Wis. 

3  Mass.  2,  1,  1,  4;  Me.  9,  7.  '^  Ark.,  Fla.,  Ga.,  La.,  Mich.,  Okla., 
*  La.  225.  Ore.,  S.  D.,  Tex.,  Va.,  Wash.,  W. 
5  Cal.  13,  2.  Va. 

»  N.  D.  177.  »*  Ark.,  Fla.,  Ga.,  La.,  Mich.,  Okla., 

^  Del.  8,  7.    This  seems  like  an  at-  S.  D.,  Utah,  Va.,  Wash.,  W.  Va.    See 

tack  on  the  "single-tax"  theory.  §  362. 

»  N.  D.  Amt.  5.  »  Mich. 


«  Ark.  3,  31 ;  Col.  10,  2 ;  Fla.  9,  2 
Ga.  7,  1,  1;  Kan.  11,  3;  Ky.  171;  La 
227;  Mass.  2,  1,  1,  4;  Mich.  14,  1 
Minn.  9,  2 ;  N.  D.  174;  Nev.  9,  2 
N.  H.  2,  5;  Okla.  10,  2;  Ore.  9,  2 
S.  C.  102;  S.  D.  11,  1;  Tex.  3,  48 
Utah  13,  2;  Va.  188;  Wash.  7,  1 
W.  Va.  10,5;  Wis.  8,  5. 


■^  Ga.,  La.,  Mich. 

'«  Ark.,  Tex.,  W.  Va. 

"  Ark.,  Ga.,  La. 

18  Tex. 

'8  Mass.,  N.  H. 

="»  Tex. 

"  La.  238. 


276  THE   STATE   CONSTITUTIONS  [BOOK    III 

to  supply  Confederate  soldiers  with  wooden  legs  and  arms; '  with 
pensions.'  For  the  enforcement  of  (|uurantine  regulations;^  to 
preserve  the  public  health;*  to  provide  "such  revenue  as  may  be 
needful."  ' 

Taxes  can  be  levied  for  public  purposes  only."  No  tax  can  be 
levied  for  paying  the  interest  on  the  bonds  of  any  chartered  com- 
pany.^ But  taxes  for  other  purposes  may  be  enacted  according 
to  the  provisions  of  §  314.^  And  (see  §  13)  the  State  of  Oklahoma 
is  expressly  authorized  to  impose  taxes  to  pay  for  its  socialistic 
experiments  (see  §  6);  and  levy  such  taxes  separately.'* 

§  336.  Amount  of  State  Tax.  —  (See  also  §  341.)  The  Consti- 
tutions of  a  few  States  limit  the  amount  of  State  taxation  for  any  one 
year/"  to  a  proportion  varying  from  one  and  a  half  mills  to  one  cent 
on  the  dollar." 

This  rate  may,  however,  be  increased  for  a  definite  rate  and  time, 
by  majority  vote  at  a  general  election,'-  or  an  election  of  the  property- 
tax-payers.  ^^ 

§  337.  Special  State  Taxes.  —  The  Constitutions  of  a  few  States 
give  the  Legislature  authority  to  levy  a  special  tax  in  aid  of  the  com- 
mon schools ;  thus,  in  Florida,  not  less  than  one  tenth  per  cent ;  ^* 
not  greater  than  one-fifth  per  cent.'^ 

§  338.  Poll-Tax.  —  By  the  Constitutions  of  two  States,  poll- 
taxes  are  declared  oppressive  and  prohibited.*" 

1  Ga.  $200,000,000,  and  never  over  eight  mills 

2  La.  (Utah    13,    7).     So,    one   and    a    half 

3  Tex,  mills  when  $300,000,000,  two  and  a  half 
*  La.  mills  when  $1,000,000,000,  and  never 
^  Neb.  9,  1.  over  three  mills  (Mon.  12,  9).  Two 
«  Ky. ;  Minn. ;  Mo.  10,  3 ;  Mon.  12,    mills,  always  (S.  D.  11,  1 ;  Va.  189)  until 

11;  Okla.  10,  14;    S.  C.  8,  3;    Tex.  8,  1907,  with  one  other  mill  for  schools, 
3 ;  Wy.  13,  3.     See  §  330,  note  1.  and  a  half  mill  for  persons  thereafter  as 
'  Fla.  9,  7.  by  law  to  be  provided  (Va.).    Three  and 
8  Ark.  one  half  mills  (Tex.  8,  19,  Amt.  1883 ; 
»  Okla.  10,  13  &  14.  Okla.  10,  9).    Four  mills  when  the  State 
"  Exclusive  of  the  tax  to  pay  in-  valuation  reaches  $100,000,000;    until 
terest  on  the  State  debt   (Mo.,  Tex.,  then,  six  mills  (Col.  10,  11).    Four  mills, 
N.   D.,   Wy.),   or  the  tax  to  support  always  (N.  D.  174;  Wy.  15,  4).     Five 
State    educational    or  charitable    in-  mills  except  for  defence  in  case  of  in- 
stitutions (Wy.).  vasion,   etc.    (Ga.    1903,   p.   21).     Six 
"  Thus  one  and  a  half  mills  when  mills  (La.  232).    Ten  mills,  or  one  per 
the    State    valuation    is    $300,000,000  cent  (Ark.  16,  8). 
(Ida.),  or  $900,000,000  (Mo.),  and  never        »=  i^j^.  1995,  p.  441 ;  Men. 
over    two    mills    (Mo.);     three    mills        '^  Utah, 
where  it    is    $100,000,000;    five  mills        "  Fla.  12,  6. 

when  $50,000,000 ;   and  never  over  ten        '^   ^j-k.    14,    3;     Nev.    Amt.    1887, 

mills     (Ida.     7,     9).      So,    four    mills  p.  169. 
when    $300,000,000,    five    mills   when        '"  Md.  Decln.  of  Rts.  15 ;   O.  12,  1. 


PART   III]  LEGISLATION  277 

But  in  many  States,  the  Constitution  provides  that  a  poll-tax  may 
or  shall  be  imposed,  not  to  exceed  SI  per  head,^  SI. 50  per  head," 
$2  per  head,^  or  $4  per  head.^  Nor  less  than  fifty  cents  per 
head,"'  S2  per  head,"  or  SI  per  head.^  Nothing  is  said  about  the 
amount.^ 

Poll-taxes  may  be  imposed  on  all  male  inhabitants  between  the 
ages  of  twenty-one  and  sixty/  twenty-one  and  fifty/"  over  twenty 
one,"  or  on  all  voters. ^^ 

Except  paupers,'^  idiots,"  insane  persons,*^  the  aged  or  infirm,'^ 
and  Indians  not  taxed,  or  uncivilized." 

Poll-taxes  are,  in  several  States,  to  be  applied  exclusively  to  the 
common-school  fund,^^  or,  in  North  Carolina,  to  purposes  of  educa- 
tion; and  part  of  it,  not  more  than  one  fourth,  to  the  poor.^^  They 
must  be  used  in  the  county  where  collected.-"  One  dollar  may  be 
authorized,  additional  to  the  State  tax,  for  the  public  schools  in 
any  county,  city,  or  town.^^ 

§  339,  Income  and  License  Taxes.  —  The  Constitutions  of  a  few 
States  specify  (unnecessarily)  that  income  taxes  may  be  imposed  ;^^ 
and  they  may  be  graduated.-^ 

But,  by  one,  the  tax  is  limited  to  such  incomes  as  exceed  S600  a 
year ;  -*  and,  in  two,  it  cannot  be  imposed  on  incomes  derived  from 
taxed  property.  ^^ 

License  Taxes,  Special,  Specific,  or  Occupation  taxes,  may,  by  the 
Constitutions  of  some  States  be  imposed.  As,  in  detail,  upon  pedlers,-" 
hawkers,-^  auctioneers,^^  brokers,^®  pawnbrokers,^  merchants,"^  com- 


1  Ark.  14,  3 ;   Fla.  9,  5 ;  Ga.  7,  2 

3; 

'»  Ark.,  Cal.,  Fla.,  Ga.,  La.,  Miss., 

La.  231;    R.  I.  Amt.  7;    S.  C.  11, 

6; 

R.   L,  S.  C,  Tex.,  W.  Va.      So  SI; 

Tenn.  2,  28;   W.  Va.  10,  2. 

balance  to  the  county  (Va.). 

2  Ala.  194;    Ky.  180;    N.  D.   180; 

'»  N.  C.  5,  2. 

Va.  173. 

2"  Del. 

'  Miss.  243 ;   N.  C.  5,  1 ;   Okla. 

10, 

^'  Va. 

18;    Wy.  15,  5. 

22  Cal.  13,   11;   Ky.   174;    N.  C.  5, 

*  Nev. 

3;    Okla.    10,   12;  S.  C.   10,   1;  Tenn. 

'  Tenn. 

2,  28;  Tex.   8,  1;    Utah    13,   12;    Va. 

«  Cal.  13,  12 ;  Nev.  2,  7. 

170. 

'  Tex.  7,  3. 

23  Okla.,  S.  C. 

«  Del.  8,  5;  Ida.  7,2. 

2"  Va. 

»  Cal.,  La.,  Nev.,  S.  C.  Tex. 

25  N.  C,  Tenn. 

"  N.  C,  N.  D. 

28  Ark.  16,  5;    III.  9,  1;    Neb.  9,  1; 

»  Ark.,  Va.,  W.  Va. 

Tenn.  2,  28. 

12  R.  L 

2^  Ark.,  Neb. 

"  Cal.,  N.  C,  N.  D. 

2«  111.,  Neb. 

'^  Cal.,  N.  D. 

29  111.,  Neb. 

"  Cal.,  N.  D. 

30  Va. 

"  N.  C,  Tenn.,  W.  Va. 

3'  111.,  Tenn. 

"  Cal.,  N.  D.,  Nev. 

278  THE   STATE   CONSTITUTIONS  [BOOK    III 

mission  merchants,'  showmen,^  jugglers,^  innkeepers,*  liquor 
dealers,^  grocery  keepers,®  toll  bridges,^  ferries,"  insurance  busi- 
ness," telegraph  business,'"  express  business,"  venders  of  patents.'^ 
Generally,  upon  all  persons  or  corporations  using  franchises  or 
privileges.'^  Upon  corporations  generally,"  banks,  and  banking 
companies,'^  railroads,'"  upon  destructive  domestic  animals.'^ 
Generally,  upon  all  business  which  cannot  be  reached  by  the 
ad  valorem  system.'"  So,  upon  trades,  or  professions."*  So,  gen- 
erally, upon  persons  or  corporations  doing  business.^  "Gross 
revenue,  franchise,  stamp,  registration,  production,  or  other  specific 
taxes."  -' 

Such  taxes  must  be  uniform  upon  each  class  upon  which  they 
operate,--  but  in  South  Carolina  they  may  be  graduated.  They  can- 
not be  imposed  on  mechanical  or  agricultural  pursuits ;  '^  or  upon 
persons  selling  their  own  farm  products.-*  In  Louisiana,  they  may 
be  imposed  on  all  persons  except  clerks,  laborers,  clergymen,  school 
teachers,  those  engaged  in  mechanical,  agricultural,  horticultural, 
and  mining  pursuits,  and  manufacturers  of  anything  except  li(|Uor, 
tobacco,  etc.,  and  cotton-seed  oil.-^  License  taxes  imposed  by 
cities  and  towns  shall  be  graded.^® 

Collateral  inheritance  taxes  are  permitted  in  the  Constitution,  not 
to  exceed  2h  per  cent ; "  3  per  cent  for  direct  inheritances  over 
$10,000,  10  per  cent  on  collateral.-"  Unlimited,  direct  or  col- 
lateral, and  may  be  graded.'"    5  per  cent,  and   graded.^" 

'  111.,  Neb.  "  Ga.  7,  2,  1 ;  S.  C. 

~  Ark.,  111.,  Neb.  '«  Va.  170. 

3  111.,  Neb.  '9  N.  C. 

*  111.,  Neb.  20  Fia.  9,  5;    Ida.  7,  2;    Ky.   181; 

«  111.,  Neb.  Mon.  12,  2  ;  Okla. ;  S.  C.  (Graduated) ; 

«  111.  Tex.  8,  1 ;  Utah  13,  12. 

'  111.,  Neb.  21  Okla. 

8  Ark.,  111.,  Neb.  "  Neb. 

^  111.,  Neb.  2'  Tex.      Quaere     whether     this    is 

'°  111.,  Neb.,  "equal  protection  of  the  law." 

»  111.,  Neb.  2^  Minn.  1907,  p.  xi. 

''  111.,  Neb.  25  La.  229. 

»  Ark. ;     111. ;     Ky. ;  N.    C.    5,    3 ;        ^6  g  q  g,  6. 

Tenn. ;  Va. ;  W.  Va.  10,  1.                             27  ^la.  219. 

"Mich.    14,   10;    Mo.    10,  21.     See       =«  La.  235. 

Art.  65.  29  Okla. 

"  Kan.  11,  2;  Minn.  9,  4.  ^o  j^iinn,  1893,  1  Amt. 
'«  Mo.  10,  5. 


PAKT   III]  LEGISLATION  279 


Article  34.    Municipal  Finance  and  Taxation 

§  340.  General  Principles.  —  By  the  Constitutions  of  many  States, 
the  Legislature  may  not  impose  taxes  upon  counties,  cities,  or  other 
municipaUties,  or  upon  the  inhabitants  or  property  thereof ;  but  may 
by  law  '  vest  in  the  corporate  authorities  thereof  the  power  to  tax.^ 
So,  counties  and  townships  shall  have  such  powers  of  local  taxation 
as  may  be  prescribed  by  law.^ 

The  principles  of  taxation  are  generally  the  same  in  municipal  as 
in  State  taxation.'*  Taxes  must  be  levied  in  pursuance  of  a  law 
and  for  public  purposes  specified  therein.^ 

So,  in  several,  such  taxes  must  be  uniform  as  to  persons  and  prop- 
erty (except  as  in  §  342)",  and  must  be  levied  according  to  the  value 
of  the  property.'' 

So,  taxes  for  municipal  purposes  may  be  levied  on  all  property 
subject  to  State  taxation ;  ^  and  the  valuation  of  property  for  mu- 
nicipal purposes  must  be  the  same  as  for  State  purposes,^  or  not 
greater  than  the  valuation  for  State  purposes.^" 

The  Legislature  shall  provide  by  law  such  a  system  of  county 
finance  as  shall  cause  the  business  of  the  several  counties  to  be  con- 
ducted on  a  cash  basis.  It  shall  also  provide  that  whenever  any 
county  shall  have  any  warrants  outstanding  and  unpaid,  for  the  pay- 
ment of  which  there  are  no  funds  in  the  county  treasury,  the  County 
Commissioners,  in  addition  to  other  taxes  provided  by  law,  shall 
levy  a  special  tax,  not  to  exceed  ten  (10)  mills  on  the  dollar  of  taxable 
property,  as  shown  by  the  last  preceding  assessment,  for  the  creation 
of  a  special  fund  for  the  redemption  of  said  warrants.^^ 

§  34L  Amount  of  Municipal  Tax.  —  (See  also  §  343.)  The  Con- 
stitutions of  a  few  States  limit  the  amount  of  municipal  taxation  for 
any  one  year.  Thus  the  rates  of  county  taxation,  from  five  mills  to 
two  and  one  half  per  cent.''    But  municipal  corporations  generally 

'  Usually,  by  general  laws  only ;  *  Fla. ;  La.  243 ;  S.  D.  10,  2  ;  Tenn. ; 
see  also  §§  313,  330,  395,  600.  Wy.  13,  3. 

2  Cal.  11,  12;  Col.  10,  7;   Fla.  9,  5;         '  S.  B. 
Ida.  7,  6;    111.  9,  9-10;    Ky.  181;    La.        «  111.  6,  9;  N.  C.  7,  9;  Neb.;  S.  C. ; 
224;   Mo.  10,  10;   Mon.  12,  4;   Neb.  9,    S.  D. ;  Wash.;  W.  Va. 
6-7 ;   Okla.  10,  20 ;   S.  C.  10,  5 ;   S.  D.         ^  N.  C. ;  Tenn. 
11,    10;    Tenn.   2,   29;     Utah    13,   5;         «  Mo.  10,  11 ;  Mon.  12,  5. 
Wash.  7,  9;  W.  Va.  10,  9;  Wy.  11,  12.         »  La.  225;  Mon. 

«  Ark.  2,  23;    Minn.   11,  5;    S.  C.        ">  Mo.;  Mon. 
8,  6.  "  Ida.  7,  15. 

•^  Not  over  one  half  per  cent  on  the 


280 


THE    STATE   CONSTITUTIONS 


[book   III 


may  levy  a  greater  rate  than  as  above  limited,  with  a  vote  of  the 
property  tax-payers  at  an  election ; '  or  of  the  electors  of  the  county 
generally ;  ^  or  of  three-fifths  vote  of  such  electors.^ 

So,  in  some,  the  tax  rate  of  towns  or  cities  is  limited  to  from  not 
more  than  one  half  per  cent  to  two  per  cent  or  even  more.* 

Except,  taxes  to  pay  valid  indebtedness  now  existing  or  hereafter 
renewed.^ 

The  Legislature  shall  restrict  the  powers  of  cities  and  towns  to 


valuation,  real  and  personal  (Ala.  215; 
Ark.  16,  91);  eight  mills  (Okla.  10, 
9);  three  fourths  per  cent  (111.  9,  8); 
ninety-five  cents  per  $100  (W.  Va.  10, 
7) ;  one  per  cent  (La.  233) ;  twelve 
mills  (Wy.  15,  5) ;  one  and  one  half  per 
cent  (Neb.  9,  5) ;  two  per  cent  in  any 
city  over  100,000  or  county  containing 
such  city  (N.  Y.  1901,  p.  1804).  Not 
more  than  one-half  the  State  tax,  i.  e., 
one  fourth  per  cent  (Tex.  8,  9,  Amt. 
1883).  Not  more  than  twice  the  State 
tax,  except  for  special  purpose,  and 
with  the  special  approval  of  the  Legis- 
lature (N.  C.  5,  6).  The  rate  in  counties 
not  exceeding  $6,000,000  in  valuation 
shall  not  in  the  aggregate  exceed  one 
half  per  cent ;  in  counties  between 
$6,000,000  and  $10,000,000,  it  must  not 
exceed  four  tenths  per  cent ;  in  counties 
between  $10,000,000  and  $30,000,000, 
not  greater  than  one  half  per  cent ;  in 
counties  over  $30,000,000,  not  more 
than  thirty-five  hundredths  per  cent 
(Mo.  10,  11).  No  county,  city,  or  town 
may  incur  debt  or  loan  credit  to  an  ex- 
tent of  more  than  ten  per  cent  of  the 
value  of  the  real  estate  (N.  Y.  8,  10). 
There  is  a  complicated  sUding  scale 
according  to  population  of  cities,  etc., 
varying  from  $1.50  per  $100,  to  50  cents 
(outside  the  school  tax :  Ky.  157). 

Except  that,  in  some  States,  cer- 
tain taxes  are  not  to  be  included  in  the 
amounts  respectively  above  limited ; 
as,  "special  taxes  authorized  by  law" 
(Ala.) ;  taxes  for  free  schools  (Ark.  14, 
3  ;  N.  Y. ;  Va.) ;  for  debts  already  in- 
curred (Ala.,  Ark.,  111.,  Neb.,  Tex., 
W.  Va.,  Wy.) ;  for  the  erection  of  pub- 
lic buildings  ;  but  such  taxes  must  not 
exceed  one  half  per  cent  in  any  one 
year ;  and  not  over  fifteen  hundredths 
per  cent,  for  roads  and  bridges  (Tex.). 

There  is  a  three  mills  county  road 


tax ;  a  seven  mills  school  tax ;  and  a 
poll-tax  of  $1  (Ark.  1897,  p.  93 ;  1905, 
p.  833).  So,  a  three  mills  school  tax 
(Fla.  1903,  p.  037). 

1  La. 

-  111.,  Neb. 

3  W.  Va. 

*  Thus,  not  more  than  one  half  per 
cent  in  any  one  year  (Ala.  215;  Ark. 
12,  4).  Eight  mills  (Wy.  15,  6).  No 
town  not  having  a  special  charter  can 
so  levy  a  tax  of  more  than  one-fourth 
per  cent  (111.  11,  4),  and  cities  having 
more  than  10,000  population,  not  more 
than  two  and  a  half  per  cent  (Te.x.  II, 
5).  Counties,  cities,  and  towns,  twenty- 
five  cents  per  $100  for  county,  city,  or 
town  purposes,  fifteen  cents  "for  roads 
and  bridges,  twenty-five  cents  for 
public  buildings,  streets,  sewers,  water, 
etc.  (Tex,  1899,  p.  171).  The  rate 
in  cities  and  towns  having  over 
30,000  inhabitants  may  not  exceed 
in  the  aggregate  one  per  cent ; 
between  10,000  and  30,000  inhabi- 
tants, not  over  six-tenths  per  cent; 
between  1,000  and  10,000,  not  over 
one-half  per  cent;  under  1,000  not 
over  one-quarter  per  cent ;  and  in 
school  districts,  for  school  purposes, 
not  over  four-tenths  per  cent ;  but  for 
school  purposes  these  rates  may  be  in- 
creased by  a  majority  vote  of  tax- 
paying  voters  at  a  special  election, 
and  for  the  erection  of  public  buildings, 
by  a  two-thirds  vote  of  all  voters  at 
such  an  election  (Mo.).  Similar  pro- 
visions are  found  in  Oklahoma,  and 
the  rates  are :  townships  not  over  one 
half  per  cent;  cities  and  towns,  one 
per  cent ;  school  districts,  one  half 
per  cent ;  total  thirty-one  and  one  half 
mills  (Okla.  10,  9,  &  10).  For  New 
York,  see  above,  note  12. 

«  Ala.,  Ark.,  Mo.,  Wy. 


PART   III]  LEGISLATION  281 

levy  taxes  and  assessments  to  borrow  money  and  contract  debts.' 
And  this  is  done,  in  fact,  in  many  other  States. 

§  342.  Prescribed  Purposes.  —  In  Wisconsin,  the  Constitution 
provides  that  each  town  and  city  shall  raise,  by  tax,  annually,  for  the 
support  of  the  common  schools,  a  sum  not  less  than  half  the  sum  re- 
ceived for  such  purposes  from  the  State  school  fund.^  In  North 
Carolina,  no  county,  town,  etc.,  shall  levy  a  tax,  except  for  its  neces- 
sary expenses,  without  a  special  vote  of  the  electors.^  In  Arkansas 
the  Legislature  may,  by  general  law,  authorize  school  districts  to 
levy,  by  a  vote  of  the  qualified  electors,  a  tax  for  school  purposes,  not 
to  exceed  one  half  per  cent.*  In  Georgia,  counties  may  levy  taxes  for 
schools  under  special  authority  of  the  Legislature  and  a  two-thirds 
vote  of  the  county.^  In  Texas,  counties  may  raise  a  special  tax  for 
common  schools  not  exceeding  one  fifth  per  cent.^  In  Florida  it 
must  be  from  three  to  five  mills.^ 

Counties,  towns,  etc.,  may  levy  taxes  for  their  current  annual  ex- 
penses,^ for  educational  purposes,^  for  the  interest  and  sinking  fund 
of  debts  already  created,*"  for  the  building  and  repair  of  courthouses, 
gaols,  bridges,  and  other  necessary  conveniences  for  the  people  of 
the  county.'*  The  Constitution  of  South  Carolina  provides  that  there 
shall  be  an  annual  tax  of  three  mills  per  dollar  in  each  county  for  the 
support  of  public  schools.'" 

In  other  States  these  matters  are  left  to  statutes. 

§  343.  Special  Taxes  for  local  improvements  may  be  made 
either  by  general  assessment,*^  or  by  betterment  tax  on  contiguous 
property.**  But  only  for  sidewalks  and  sewers,  and  not  in  excess 
of  the  benefit.*^ 

But  such  betterment  taxes  must  be  consented  to  by  a  majority  of 

property  holders  in  the  locality  affected,  and  they  must  be  ad  valorem 

and  uniform.*^    So,  in  Louisiana,  a  special  tax  not  exceeding  one  half 

per  cent,  nor  for  more  than  ten  years,  may  be  levied  in  aid  of  railroads 

or  public  improvements  by  vote  of  a  majority  of  the  tax-payers.*^ 

'  S.  C.  8,  3.  '2  S.  C.  11,  6. 

^  Wis.  10,  4.  "  111.  9,  9 ;  Neb.  9,  6. 

3  N.  C.  7,  7.  "  Ala.  222,  223 ;    Ark.  Amt.   1907, 

*  Ark.  14,  3.  p.  ix;    19,  27;   Cal.  11,  19:   Col.  1891, 

«  Ga.  8,  4,  1.  p.  89;    1903,  p.  74;    111.;    Minn.  9.  1; 

«  Tex.  Amt.  1883.  Neb.;   Okla.  10,  7;   S.  D.  11,  10;   Va. 

^  Fla.  12,  8.  170;  Wash.  7,  9. 

«  Tex.  11,  6.  ''  Ala.,  Va. 

»  Ga.  7,  6,  2.  "  Ark. 

i"  Tex.  "  La.  242. 
"  Ga. 


282 


THE   STATE   CONSTITUTIONS 


[book    III 


The  betterment  tax  must  be  collected  before  the  work  is  com- 
menced.* License  taxes  may  be  imposed  by  towns,  etc.,  under 
legislative  authority.- 

§  344.  Power  to  Contract  Loans,  etc.  —  The  Con.stitutions  of 
several  States  provide  that  the  power  of  municipal  corporations  to 
tax,  borrow  money,  contract  debts,  or  loan  credit,  shall  be  restricted 
so  as  to  prevent  the  abuse  of  such  power.^  So,  it  may  only  be  for 
schools,  roads,  bridges,  indebtedness,  current  expenses,  etc* 

But  in  Nevada,  that  there  can  be  no  restriction  on  the  power  of 
municipalities  to  tax,  borrow,  loan,  etc  ,  for  the  purpose  of  getting 
a  water  supply. 

§  345.  Loans  of  Credit,  etc.  —  By  the  Constitutions  of  most  States, 
no  town,  county,  or  municipality  can  give  money  or  property  to  any 
corporation  having  for  its  object  a  dividend  of  profits ;  ^  or  to  any  in- 
dividual or  corporation  whatever;^  or  to  any  railroad  corporation 
specially.^  Nor  can  it  loan  its  money  or  credit  to  such  corporations 
respectively.^  (So,  no  county  can  loan  its  credit  to  any  association 
or  corporation  but  by  special  act  with  notice,  etc.,  see  §  346.)  ® 

No  county,  city,  or  town,  etc.,  may  incur  any  debt  above  its  an- 
nual revenue  without  a  two-thirds  vote  at  a  special  election;  and  a 
tax  wdth  sinking  fund  of  twenty  years  must  be  provided.*"  It  may 
not  become  a  party  to,  or  interested  in,  any  work  of  internal  im- 
provement except  roads.**- 

Nor,  in  several,  can  such  town,  etc.,  become  security  for  such  cor- 
poration ;  *"  nor  become  a  stockholder  or  bondholder  in  such  private 
corporation.*^ 

Utah; 


»  Cal. 

"  Ky.  181,  Amt.  1902,  50. 
3  Ala.  222,  226;    Ark.  12,  3;    Kan. 
12,  5 ;    Mich.  15,  13 ;    Miss.  80 ;    N.  C. 

8,  4;  N.  D.  130;  Nev.  8,  8;  N.  Y.  12, 
1;  O.  13,  6;  Ore.  11,  5;  S.  C.  8,  3; 
S.  D.  10,  2;   Wis.  11,  3;   Wy.  13,  3. 

*  S.  C. 

«  Ida.  12,  4;  N.  H.  2,  5;  Okla. 
10,  17. 

«  Ala.  94 ;  Ark.  12,  5 ;  Cal.  4,  31 ; 
Col.  11,  2;  Del.  8,  8;  Fla.  9,  10;  Ga. 
7,  6,  1 ;  Ida.  8,  4 ;  III.  separate  section ; 
Ind.  10,  6;  Ky.  179;  La.  58;  Miss. 
183;  Mo.  4,  47;  9,  6;  Mon.  13,  1; 
N.  D.  185;  N.  J.  1,  Amt.  19  &  20; 
N.  Y.  8,  10;   O.  8,  6;   Ore.  11,  9;   Pa. 

9,  7;  S.  D.  13,  1;  Tex.  3,  52  &  11,  3; 
Utah  6,  31;  Wash.  8,  7;  Wis.  11,  3; 
Wy.  16,  6. 


'  Ct.  Amt.  25 ;    Neb.  14,  2 ; 
Wy.  3,  39;  10,  10  (5). 

8  Ala. ;  Ark.  16,  1 ;  1903,  p.  484 
Cal. ;  Col.  11, 1 ;  Ct. ;  Del. ;  Fla. ;  Ga. 
Ida. ;  111. ;  Ind. ;  Ky. ;  La. ;  Miss. ;  Mo. 
Mon.;  N.  D. ;  Nev.  8,  10;  N.  H. 
N.  J.;  N.  Y.;  O. ;  Okla.;  Ore.;  Pa. 
S.  D. ;  Tenn.  2,  29 ;  Terr.  U.  S.  1886 
818,  2  ;  Tex. ;  Utah;  Va. ;  Wash. ;  Wy 

»  Md.  3,  54. 


"  Ida.  8,  3. 

"  Va. 

'-  Cal.,  Col.,  La 

,  N.  H.,  N.  J.,  Terr. 

'3  Ala. ;     Ark. ; 

Cal.;     Col.    11,    2; 

Ct. ;     Del. ;     Fla. 

Ga. ;     Ida. ;     111. ; 

Ind.;    Ky.;    La.; 

Miss. ;    Mo. ;    Mon. ; 

N.  D.;    Neb.    12, 

1;    Nev.;    N.    H. ; 

N.  J. ;  N.  Y. ;  0. 

;   Okla.;   Ore.;   Pa.; 

S.    D. ;     Tenn.; 

Terr. ;     Tex. ;     Va. ; 

Wash.;  Wy. 

PART   III]  LEGISLATION  283 

Except,  it  may  own  stock  or  bonds  of  railroad  companies; '  or  of 
any  corporation,  if  the  stock  be  paid  for  at  the  time  of  subscription ; ' 
or  for  gas,  lighting,  sanitary,  water,  or  school  purposes,  provided  it 
"own  its  just  proportion  of  the  property  so  erected  and  receive  its 
proportionate  income."  ^ 

Nor  can  the  Legislature  authorize  such  town,  etc.,  so  to  do.''  The 
same  would  follow  from  the  constitutional  provisions  in  other  States. 

So,  no  municipality  can  become  a  stockholder,  directly  or  in- 
directly, in  any  bank.^ 

In  other  States  no  municipality  can  become  indebted  or  issue 
bonds  to  aid  a  railroad  for  more  than  ten  per  cent  of  its  valuation ;  ^ 
and  five  per  cent  additional,  on  a  two-thirds  vote.'    (See  §  340.) 

Except  for  the  necessary  support  of  the  poor.^ 

§  346.  Limitations  on  Section  345.  —  But  in  some  States  a  county, 
town,  etc.,  may  give  or  lend  its  property  or  credit,  or  own  stock,  not- 
withstanding §  345,  on  vote  of  the  electors  under  authority  of  law ;  ^ 
or  on  a  three-fourths  vote  of  the  electors ;  ^°  or  by  act  of  the  Legisla- 
ture approved  also  by  the  next  Legislature  after  publication  in  the 
locality  interested ;  "  or  for  constructing  roads  and  bridges ;  '^  or  by 
a  vote  of  property  owners,  for  ten  years,  if  the  appropriation  be  not 
more  than  five  mills  on  the  valuation. ^^ 

See  also  §  332. 

Article  35.    Collection  of  Taxes 

§  350.  Sworn  List.  —  By  the  Constitution  of  California  every 
tax-payer  is  required  to  make  an  annual  statement  of  his  taxable 
property  under  oath.^* 

§  35L  Sale  for  Taxes.  —  The  Constitution  of  Louisiana  provides 
that  there  shall  be  no  forfeiture  for  the  non-payment  of  taxes. ^^ 

But  there  must  be  a  sale  of  so  much  as  is  necessary. ^^  Such  sale  of 
real  estate  must  be  after  order  or  judgment  of  some  court  of  record." 

There  must,  in  two,  be  reasonable  notice  to  the  owner.  ^^    And,  in 

>  Nev.  '  Neb.  14,  2. 

2  Ind.  "'  Tenn.  2,  29. 

»  Ida.  12,  4.  "  Md.  3,  54. 

*  Ala.,   Cal.,    Fla.,   Ga.,    Ky.,   Mo.,  '^  Ky. 

N.  H.,  O.,  Tex.     But  see  Tex.   Amt.  >"  La.  270. 

1903,  p.  247.  "  Cal.  13,  8. 

s  lo.  8,  4.  *^  La.  233. 

8  Minn.  9,  14 ;  Neb.  (see  §  346).  >«  La. ;  Tex.  8,  13. 

'  Neb.  "  111.  9,  4. 

8  N.  D. ;  N.  Y.  "  111.  9,  5 ;  La. 


284  THE   STATE   CONSTITUTIONS  [BOOK   III 

two  others,  the  occupant  must  always  have  personal  notice  by  service 
before  the  time  of  redemption  expires.' 

§  352.  Redemption.  —  By  the  Constitutions  of  a  few  States,  the 
owner,  tenant,  etc.,  of  real  estate  sold  for  taxes  may  redeem  at  any 
time  within  two  years  from  the  sale;-  at  any  time  within  one  year 
therefrom.^  Upon  payment  of  twice  the  purchase-money ;  *  of  the 
price  plus  twenty  per  cent  and  costs.* 

The  right  of  redemption  from  all  sales  of  real  estate,  for  the  non- 
payment of  taxes,  or  special  assessments,  of  any  and  every  character 
whatsoever,  shall  exist,  on  conditions  to  be  prescribed  by  law,  in 
favor  of  owners  and  persons  interested  in  such  real  estate,  for  a 
period  of  not  less  than  two  years.' 

§  353.  Tax-titles.  —  By  the  Constitution  of  Louisiana,  all  tax 
deeds  are  prima  facie  e\adence  of  the  sale ;  and  no  sale  can  be  an- 
nulled for  informality  except  on  payment  or  tender  of  the  price  plus 
ten  per  cent  interest.^  In  Texas,  the  deed  vests  a  good  title  in  the 
purchaser,  subject  to  be  impeached  only  for  actual  fraud. ^  The 
courts  are  "to  apply  liberal  principles  in  favor  of  tax  titles."  ^ 

§  354.  State  Boards  of  Equalization  are  pro\aded  for,  consisting 
of  the  Governor,  Secretary  of  State,  Attorney-General,  State  Auditor, 
and  State  Treasurer,  whose  duties  shall  be  prescribed  by  law.  The 
Board  of  County  Commissioners  for  the  several  counties  of  the  State 
shall  constitute  Boards  of  Equalization  for  their  respective  counties, 
whose  duty  it  shall  be  to  equalize  the  valuation  of  the  taxable  prop- 
erty in  the  county  under  such  rules  and  regulations  as  shall  be  pre- 
scribed by  law.^'* 

The  State  Board  for  Equalization,  etc.,  is  composed  of  the  State 
Treasurer,  Auditor,  and  Secretary." 

Such  boards  exist  in  many  States  by  statute. 

Article  36.    State  Debts 

§  360.  Temporary  Loans.  —  By  the  Constitutions  of  most  States, 
the  Legislature  may  authorize  a  temporary  loan,  to  meet  casual 
deficits,  etc.,  not  exceeding  with  all  other  such  debts,  S50,000;'^ 

*  lU. ;  Neb.  9,3.  «  Tex.  8,  13. 

2  111.  9,  5 ;  Neb.  9,  3 ;  Tex.  8,  13.  »  Miss.  79. 

3  La.  233.  "  Ida.  7,  12 ;  Mon.  12,  15. 

*  Tex.  »  Wy.  15,  10. 

«  La.  12  Ariz.  *  Bill  of  Rts.  25 ;  Md.  3,  34 ; 

"  Miss.  79.  Mich.  14,  3;   Ore.  11,  7;   R.  I.  4,  13. 

^  La.  233. 


PART   III] 


LEGISLATION 


285 


$100,000; »  S200,000;2  $250,000 1^  $300,000;*  $400,000  ;'^ 
$500,000;"  $750,000;^  $1,000,000;  «  or  the  amount  of  such  loans 
is  not  limited.* 

But  in  Alabama,  until  such  loan  is  paid,  no  new  one  can  be  nego- 
tiated. (The  same  follows  in  all  States,  unless  the  whole  debt  be 
less  than  the  sum  allowed.) 

And  in  several,  every  such  law  shall  provide  annual  taxes  suffi- 
cient to  pay  the  debt,  principal  and  interest,  in  two  years; '"  in  five 
years ;  "  in  ten  years ;  '^  thirty  years ;  '^  when  due ;  ^*  annual  taxes 
sufficient  to  pay  the  interest.*^ 

Such  provision  for  taxes  and  appropriation  to  meet  the  debt  are 
irrepealable  until  the  debt  is  paid.^"  See  §  362.  For  the  method  of 
enacting  such  laws,  see  §  315. 

§  361.  Other  Debts  may,  by  the  Constitutions  of  most  of  the 
States,  be  created  for  the  following  purposes  only:^''  to  repel  in- 
vasion or  suppress  insurrection,^®  to  pay  the  State  debt,^^  principal 
and  interest,^''  or  interest  only.^^  The  amount  of  such  debts  is  not 
limited."  Also,  for  the  erection  of  public  buildings  "^  (but  not  to  an 
amount  over  $50,000);  for  public  improvements  (not  over  the 
limit  prescribed  in  §  360);^*  for  canals;-^  for  the  improvement  of 
highways.^® 

And  debts  for  purposes  not  above  mentioned,  but  distinctly  speci- 


1  Col.  11,  3 ;  Mon.  13,  2 ;  Neb.  14,  1 ; 
N.  J.  4,  6,  4 ;  S.  D.  13,  2  ;  Wis.  8,  6. 

2  Ga.  7,  3,  1 ;  N.  D.  182 ;  Tex.  3,  49 ; 
Utah,  14,  1. 

3  111.  4,  18;  lo.  7,  2;  Minn.  9,  5; 
Mo.  4,  44. 

*  Ala.  213 ;  Cal.  16,  1 ;  Me.  9,  14 ; 
Nev.  9,  3. 

«  Wash.  8,  1 ;  Okla.  10,  23. 

«  Ky.  49. 

'  O.  8,  1. 

«  Kan.  11,  5;  N.  Y.  7,  2;  Pa.  9,  4. 
9  Del.  8,  3 ;  Ind.  10,  5 ;  N.  C.  5,  4 ; 
S.  C.  10,  11;  Va.  184;  W.  Va.  10,  4. 
So  in  the  other  States,  the  power  to 
borrow  money  being  inherent  in  their 
sovereignty. 

'»  Mo. 

"  Wis. 

12  Minn. 

»  N.  D. 

"  Kan. 

15  Neb. 

"  Kan.,  Minn.,  Neb.,  Wis. 

"  I.  e.,  exclusive  of  temporary  loans. 


18  Ala.  213;  Cal.;  Col.;  Del.  8,  3 
Fla.  9,  6 ;  Ga.  7,  12,  1 ;  Ida.  8,  1 ;  111. 
Ind.;  lo.  7,  4;  Kan.  11,  7;  Ky. ;  La, 
46 ;  Md. ;  Me. ;  Mich.  14,  4 ;  Minn 
9,  7 ;  Mon. ;  N.  C. ;  N.  D. ;  Neb.  14,  1 
Nev.;  N.  J.;  N.  Y.  7,  3;  O.  8,  2 
Okla.  10,  24 ;  Ore. ;  Pa. ;  R.  I. ;  S.  D. 
Terr.,  U.  S.  1886,  818;  Tex.;  Utah 
14,  2;  Va. ;  Wash.  8,  2;  W.  Va. 
Wis.  8,7;  Wy.  16,  1.    See  §  315. 

19  Ala. ;     Ark.    16,    1 ;     Del. 


N.    Y.;     O. 


Fla.; 
Pa; 


W.  Va. 


Ga. ;     Ky. ;     Mo. ; 
Terr.;   Tex.;    Va. 

20  Va.,  W.  Va. 

21  Ind. 

22  N.  Y.  7,  4. 

23  Col.    See  §  324. 
2*  Kan.  11,  5. 

25  N.  Y.  7,  10. 

28  N.  Y.  7,  12;  Amt.  1905.  Such 
debt  may  not  exceed  fifty  million  dol- 
lars, and  counties  may  be  required  to 
pay  thirty-five  per  cent  and  towns 
fifteen  per  cent  of  the  cost,  towards  a 
sinldng  fund  of  two  per  cent. 


286  THE   STATE   CONSTITUTIONS  [UOOK    III 

fied  in  the  bill,  may  be  incurred,  in  many  States,  if  the  law  is  passed 
and  ratified  according  to  §§  315,  303,  and  provision  for  payment 
made  according  to  §  302;'  so,  of  debts  exceeding  the  amount 
limited  in  §  30U."  But  otherwise  no  debts  can  be  incurred  except 
as  in  §§  300,  301.^  The  amount  of  such  debts  is  limited  to  one 
per  cent  of  valuation ;  *   one  and  one-half  per  cent.^ 

In  INIaine,  the  Constitution  authorized  a  special  war  debt  of 
$3,500,000."  Tliree  States  are  forbidden  to  issue  any  interest- 
bearing  treasury  warrants  or  scrip ;  ^  except  for  the  redemption  of 
bonds  previously  issued,  or  for  such  debts  as  are  expressly  author- 
ized by  the  Constitution.^  A  recent  Arkansas  amendment  forbids 
all  interest  bearing  "evidences  of  indebtedness"  both  to  the  State, 
counties,  cities,  and  towns,  except  on  vote  of  the  people,  in  cities  of 
the  first  and  second  class.^ 

§  302.  Payment  of  Debts.  —  In  several  States,  no  debt '"  can  be 
contracted  by  the  Legislature  unless  authorized  by  a  law  which  shall 
at  the  same  time  make  provision  by  taxation,  etc.,  for  its  payment; 
thus : — 

For  its  payment,  principal  and  interest,  when  due ;  "  or  within  ten 
years ;  '^  thirteen  years ;  '^  fifteen  years ;  "  within  twenty  years ;  '^ 
twenty-five  years;'®  thirty  years; '^  thirty-five  years; '^  or  fifty 
years;  '^  for  the  payment  of  the  interest  (only),  when  due.-" 

And  this  part  of  the  law,  is,  by  the  Constitutions  of  these  States 
declared  irrepealable  until  the  debt  is  paid.-'  In  some  States  there 
are  also  constitutional  provisions  for  a  sinking  fund.^^ 

§  303.     Ratification  hij  the  People.  —  An  act  authorizing  a  State 

»  Cal. ;    Ida. ;    111. ;    lo.  7,  5 ;    Kan.  9,  5 ;    Mon.  13,  2 ;   Neb. ;    S.  D.  13,  2 ; 

11,  6;    Ky.  50;    Md. ;    Mon.;    N.  C. ;  Va.  187. 
N.  J.;    N.  Y.;   R.  I.;    S.  C;   Wash.;       ^=  S.  D.  11,  1. 
Wy.  '^  Me. ;  Minn. ;  Mo.  4,  44. 

2  Cal.,  Mo.,  Mon.,  Nev.,  N.  D.,  Okla.,        "  Col.  11,4;  Md.  3,  34  ;  Mo.  4,  44. 
S.  D.  '=  Cal.  16,  1 ;    Ida.  8,   1 ;    lo.  7,  5 ; 

3  Ark. ;  Col. ;  Minn.  9,  7 ;  Mo. ;  Nev.  9,  3 ;  Utah,  13,  2 ;  Wash.  7,  1 ; 
Neb. ;   O.  8,  3 ;   Wis.  8,  4.  8,  3. 

*  Wy.  16, 1 ;  Terr.,  U.  S.  1886, 818, 3.  '»  Okla.  10,  4. 

6  Ida.  ''  Ky.  50 ;  N.  D.  182. 

«  Me.  9,  15.  '«  N.  J.  4,  6,  4. 

'  Ark.  16,  1 ;  S.  C.  10,  7;  Va.  10,  13.  '«  N.  Y.  7,  4. 

«  S.  C. ;  Va.  ^°  111.  4,  18;  N.  C.  5,  4;  S.  C.  10,  11. 

8  Ark.  1903,  p.  484.  ^i  Qal. ;    Col.;    Ida.;    111.;    lo.  7,  6; 

"  Except  debts  incurred  to  meet  a  Kan.;    Md.,    Minn.;     Mon.;     N.    D. ; 
casual  deficit  (§  360),  or  except  debts  Nev.;  N.  J.;  N.  Y. ;  S.  D.     The  pro- 
incurred  to  repel  invasion  or  suppress  vision  seems  hardly  necessary, 
insurrection  (§  361).  ^-  Ga.  7,  14,  1 ;  Ky.  48;  Mich.  14,  2; 

"  lo.   7,  6;    Kan.   11,  5-6;    Minn.  Pa.  9,  11;   Va.  10,  8. 


PAKT   III]  LEGISLATION  287 

debt,  under  §§  361,  362,  must  in  several  States  be  ratified  by  the 
people  at  a  general  election ;  ^  and  it  requires  a  two-thirds  vote  of 
the  people.^ 

§  364.     Limitations  on  the  State's  Power  to  contract  Debts.  — 

Rebellion  Debts.  —  By  the  Constitutions  of  two  Southern  States, 
the  State  shall  never  assume,  pay,  or  authorize  the  collection  of  any 
debt  or  obligation,  express  or  implied,  incurred  in  aid  of  rebellion 
against  the  United  States.^  See  §  31,  and  compare  U.  S.  C.  Amt. 
XIV,  4.  So,  no  county,  city,  or  municipal  corporation  shall  levy  or 
collect  any  tax  for  the  payment  of  any  debt  created  for  the  purpose  of 
aiding  rebellion  against  the  State  or  the  United  States.* 

All  debts  must  be  by  State  bonds  of  an  amount  not  under  $50 
each,  on  interest,  payable  in  not  more  than  forty  years.^ 

§  365.  Repiidiation.  —  The  Constitution  of  North  Carolina  pro- 
vides that  all  debts  authorized  or  bonds  issued  by  the  Legislature  of 
1868-1870,  or  under  the  Convention  of  1868  (except  such  as  were 
issued  to  fund  the  old  debt),  shall  never  be  paid,  unless  the  law  pro- 
posing payment  be  ratified  by  the  people  at  a  special  election.^  And 
the  Constitution  of  Missouri  provides  that  the  claims  audited  by 
virtue  of  the  Act  of  1874  to  adjust  the  war  debt  of  the  State  or  any 
similar  act  shall  never  be  paid  by  the  State  until  they  are  paid  to  the 
State  by  the  United  States.^ 

But  in  Arkansas,  the  Constitution  prescribes  that  the  Legislature 
shall,  from  time  to  time,  provide  for  the  payment  of  all  just  and  legal 
debts  of  the  State.  ^  Compare  also  §  362.  By  an  amendment,  how- 
ever, the  "  Holford  "  bonds  of  1869  are  repudiated.^ 


Article  37.     Municipal  Debts 

§  370.  Purposes.  —  (See  also  §  362. )  Some  Constitutions  provide 
that  no  county,  city,  or  village  shall  contract  debts  except  for  county, 
city,  and  village  purposes ;  '°  for  making  and  repairing  public  roads 
and  bridges;  "  for  erecting  necessary  public  buildings; '"  for  school, 

'  Cal.;    Ida.;    111.;    lo. ;    Kan.    11,         ^  Mo.  4,  52. 

6;    Ky.;    Mon. ;  N.  J.;   N.  Y. ;  Okla.;         «  Ark.  16,  2. 

R.  I. ;    Wash. ;  Wy.  16,  1.  »  Ark.  1879,  p.  149. 

2  Mo.;  S.  C.  10,  11.  »»  N.  Y.  8,   10;  Utah   14,  4;  Wash. 

'  Ga.  7,  11,  1;  N.  C.  1,  6.  8,  6. 

*  N.  C.  7,  13.  »  Col.  11,  6;  Mo.  1905,  p.  39. 

«  S.  C.  10,  11.  '2  coi^  ]^io 

«  N.  C.  1,  6. 


288  THE   STATE   CONSTITUTIONS  [BOOK   III 

water,  sanitary,  and  ligliting.'  No  comity  can  borrow  money  for  the 
purpose  of  taking  stock  (§  345) ;  ^  so  no  county  can  contract  debts  in 
the  construction  of  railways,  canals,  or  works  of  internal  improve- 
ment, except  as  in  §  340.^  No  county,  city,  or  other  nmnicipality 
can  ever  issue  interest-bearing  evidences  of  indebtedness,  except  in 
payment  of  debts  previously  (to  1S74)  existing.*  In  Texas,  counties 
and  cities  bordering  on  the  Gulf  may  levy  taxes  and  issue  loans  for 
the  erection  of  sea-walls,  breakwaters,  and  for  sanitary  purposes.* 
In  Colorado,  school-districts  may  contract  a  loan  upon  a  majority 
vote  of  the  tax-payers  therein.*  In  Louisiana,  various  purposes  are 
particularly  specified,  and  in  IMichigan,  county  roads.^ 

The  Legislative  Assembly  shall  have  no  power  to  pass  any  law 
authorizing  the  State,  or  any  county  in  the  State,  to  contract  any 
debt  or  obligation  in  the  construction  of  any  railroad,  nor  give  or 
loan  its  credit  to  or  in  aid  of  the  construction  of  the  same.^ 

§  37L  Amount.  — There  is  an  increasing  tendency  to  limit  by 
Constitution  the  amount  of  municipal  debts;  thus,  in  Virginia  no 
county  or  city  can  in  the  aggregate  be  indebted  or  contract  debts  to 
an  amount  exceeding  18  per  cent  on  its  assessed  valuation ;°  in 
New  York,  10  per  cent  on  the  realty;  ^°  in  others,  S  per  cent;  "  7  per 
cent ;  ^^  5  per  cent ;  '^  4  per  cent ;  ^*  3  per  cent ;  ^^  2  per  cent ;  ^*  1  ^  per 
cent ; "  j\  P^r  cent  or  jq  P^r  cent  in  counties  having  a  valuation 
under  $5,000,000.^^  In  Kentucky  there  is  a  sliding  scale  according 
to  six  classes  of  cities  ranging  from  10  per  cent  to  2  per  cent  of  valu- 
ation;^^ in  California  no  county,  city,  or  town  is  permitted  to  con- 
tract any  debt  in  excess  of  the  annual  expenditure  except  by  vote  of 
the  people.'"  No  county  in  Oregon  may  create  debts  to  exceed 
S5,000.-^  In  South  Carolina  there  is  also  a  provision  that  there  may 
be  no  debt  upon  any  "  territory "  (of  overlapping  municipalities) 

>  Ida.  12,  4.  Mo.  10,  12 ;   Mon.  13,  6  (of  counties) ; 

2  Ind.  10,  6.  N.  D.  183;  Okla.  10,  26;  W.  Va.  10,  8; 

3  Md.  3,  54.  Wis.  11,  3. 

*  Ark.  16,  1.  "  Utah  14,  4  (of  cities  and  towns 

«  Tex.  11,  7.  only). 

'  Col.  11,  7.  15  Col.  11,8;  Mon.  13,  5;  S.  D.  13,  4 

^  La.  281;   1906,  122;  Mich,  1899,  (of  cities  and  towns  only  in  Colorado). 

p.  478.  18  Ind.  13,  1 ;  Mon.  13,  6 ;  Wy.  16,  3. 

^  Mon.  5,  38.  Utah  14,  4  (of  counties  only). 

«  Va.  127.  1^  Wash.  8,  6. 

"  N.  Y.  8,  10.  >8  Col.  11,  6. 

"  S.  C.  8,  7.  >»  Ky.  158. 

''  Ga.  7,  7,  1 ;   Pa.  9,  8 ;   Wash.  8,  6.  ^o  g^e  §  372. 

"  111.  9,  12;   lo.  11,  3;  Me.  Amt.  22;  ^i  Qre.  11,  10. 


PART  III]  LEGISLATION  289 

over  15  per  cent.'  All  bonds  in  excess  of  this  limit  are  usually 
declared  void.^ 

Except,  in  Oregon,  to  repel  invasion  or  suppress  insurrection;  or, 
in  Indiana,  to  provide  for  the  protection  of  the  people  in  time  of  war 
or  great  public  calamity,  on  a  petition  of  a  majority  of  the  property- 
owners  in  number  and  value;  or,  in  ^Missouri,  to  erect  a  court-house 
or  gaol ;  or,  in  New  York,  North  Dakota,  Wyoming,  and  Colorado, 
to  supply  water  to  the  city  or  town ;  or  in  North  Dakota,  sewerage 
works ;  or,  in  Montana,  of  cities  and  towns  for  sewerage  or  water 
supply  owned  by  the  municipality,  by  act  of  Legislature,  and  on 
popular  vote.^  Such  water  bonds  may  only  run  20  years,  with 
sinking-fund,  etc.* 

But  in  Colorado,  counties,  in  Oklahoma  and  North  Dakota  cities 
and  towns,  may  incur  debt  to  a  greater  amount  than  as  above  limited 
by  a  majority  vote  of  the  tax-payers  in  such  county.^  In  Oklahoma 
such  debts  may  be  created  for  "purchasing  or  constructing  public 
utilities  to  be  owned  by  the  city,"  etc.  So  any  county,  town,  etc., 
may  incur  an  additional  indebtedness  not  exceeding  10  per  cent " 
upon  the  valuation  of  the  year  preceding  (1)  for  the  purpose  of 
providing  water  and  sewerage  for  irrigation,  domestic  uses,  and  other 
purposes;  provided  that  a  city  where  the  population  is  8,000  or  more 
may  incur  an  additional  debt  not  exceeding  8  per  cent  for  the  purpose 
of  constructing  electric  railways,  electric  lights,  or  other  lighting 
plants,  provided  further  that  no  county,  town,  etc.,  shall  be  included 
within  such  district  without  the  majority  vote  of  the  electors,  and  no 
such  debt  shall  be  incurred  for  any  of  the  purposes  in  this  section 
pro%dded  unless  by  a  majority  vote  of  the  electors  of  such  county, 
town,  etc. ;''  (2)  for  water,  light,  and  sewerage  works  owned  by  the 
municipality;  ^    (3)  for  county  roads.^ 

§  372.  Voting.  —  No  municipality  can,  in  a  few  States,  con- 
tract any  debt  (except  a  temporary  debt,  incurred  in  antici- 
pation of  income)  without  the  assent  of  two  thirds  of  its  voters 
at  a  special  election;  ^"^  or  a  majority;  '^  of  tliree  fifths,  at  any  elec- 

'  S.  C.  10,  5.  ^  S.  D.  13,  4,  as  amended. 

2  Mon. ;  N.  D. ;  N.  Y. ;  Okla.  10,  29.         *  Utah  14,  4 ;  Wash.  8,  6. 
^  But  not  over  4  per  cent  on  the         *  Three   per   cent   (Mich.   1899,    p. 

valuation  (N.  D.,  Wy.).  478). 

*  N.  Y.  '"  Ga.  7,  7,  1 ;    Ida.  8,  3 ;    Ky.  157 ; 
'  But  only  to  double  such  amount  Mo.  10,  12 ;  9,  19. 

(Col.)  or  8  per  cent  instead  of  5  per  ''  Cal.  1891,  p.  523;  Mon.  14,  5; 
cent  and  by  a  two-thirds  vote  (N.  D.).    Wy.  16,  4. 

*  Eight  per  cent  (Utah). 

19 


290  THE    STATE    CONSTITUTIONS  [BOOK    III 

tion ; '  of  a  majority  of  the  tax-pa i/rrs  ;  •  botli  in  nninlxT  and 
anionnt;^  of  the  electors,  and  under  a  law;^  on  a  petition  hy  a 
niajoritv  of  the  freeholders;  and  they  must  have  paid  all  taxes, 
State  and  local,  for  the  preceding  year.^ 

§  373.  Payment.  —  A  municipality  creating  a  debt  must,  by  the 
Constitutions  of  several  States,  at  the  same  time  provide  for  its 
payment,  principal  or  interest,  and  make  provision  for  a  tax  or  a 
sinking-fund  therefor,  to  be  fully  paid,  when  due,  or  at  maturity;" 
within  fifteen  years ;  ^  twenty  years ;  *  twenty-five  years ; "  thirty 
years;'"  thirty-four  years ;  "  forty  years.'-  The  sinking-fund  must 
be  of  two  per  cent  annually.'^ 

§  374.  Collection  of  Municipal  Debts.  —  By  the  Constitutions 
of  several  Western  States,  private  property  shall  not  be  liable  to  be 
taken  and  sold  for  the  payment  of  corporate  debts  of  municipal 
corporations."    The  New  England  law  is  otherwise. 

§  375.  No  bond  or  evidence  of  debt  of  any  county,  or  bond  of  any 
township  or  other  political  subdivision  shall  be  valid  unless  the  same 
have  indorsed  thereon  a  certificate  signed  by  the  county  auditor,  or 
other  officer  authorized  by  law  to  sign  such  certificate,  stating  that 
said  bond,  or  evidence  of  debt,  is  issued  pursuant  to  law  and  is 
within  the  debt  Umit.'^ 

Article  39.     IMatter  of  Legislative  Power 

§  390.  The  State  Legislatures  during  the  Revolution  had  un- 
limited legislative  power.  They  are  now  restrained,  principally, 
by  Articles  I.  10,  II.  1,  and  IV.,  and  Amendments  XIII.,  XIV.,  and 
XV.  of  the  Federal  Constitution  (but  see  Appendix,  Z,  AZ),  and  by 
the  State  Constitutions,  and  in  the  latter  we  find  an  ever-increasing 
tendency  to  limit  legislative  power.     See  Book  I  ;   Book  III.  §  1. 

§  391.  In  General.  —  Some  of  the  older  States  have  provisions 
in  the  Constitution  attempting  to  define  generally  the  duties  of  the 

»  Okla.  10,  26 ;  Wash,  (does  not  ap-        »  Ida. ;     111.    9,    12 ;     Mo.    10,    12 ; 

ply  to  debts  under  the  lower  limit  in  Wis.  11,  3. 
§  371) ;    W.  Va.  10,  8.  »  Okla. 

2  Col.  11,  8;  La.  281;  S.  C.  2,  13;       '»  Ga.  7,  7,  2;  Pa.  9,  10. 
Utah  14,  3.  "  W.  Va.  10,  8. 

«  La.  »2  Cal. ;  Ky.  159 ;  La. 

*  Ala.  104.  "  Tex.  11,  5. 

«  S.  C.  "  Cal.  11,  15;  Col.  10,  14;  111.  9,  10; 

«  N.  D.  184;  S.  C.  8,  7;  S.  D.  13,  5.  Mo.  10,  13;    Mon.  12,  8;    Neb.  9,  7; 

^  Col.  11,  8  (of  a  city  or  town  only).  Wy.  11,  13. 

'5  N.  D.  187 ;  Wy.  16,  8. 


PART   III]  LEGISLATION  291 

Legislature  and  the  purposes  and  objects  of  legislation ;  '  as,  "  for 
the  redress  of  public  grievances,  and  for  making  such  laws  as  the 
public  good  may  require;"-  or,  "all  manner  of  wholesome  and 
reasonable  order,  laws,  statutes,  ordinances  and  directions  as  they 
may  judge  for  the  benefit  and  welfare  of  this  State."  ^  "To  encourage 
private  and  public  institutions,  rewards,  and  immunities,  for  the 
promotion  of  agriculture,  arts,  sciences,  commerce,  trades,  manu- 
factures, and  natural  history  of  the  country;  to  countenance  and 
inculcate  the  principles  of  humanity  and  general  benevolence, 
public  and  private  charity,  industry  and  economy,  honesty  and 
punctuality,  sincerity,  sobriety  and  all  social  affections  and  generous 
sentiments,  among  the  people."  *  So,  in  several  States,  the  Legisla- 
ture are  to  pass  such  laws  as  may  be  necessary  to  carry  into  effect  the 
provisions  of  the  Constitution.^  The  Legislature  are  to  pass  such 
laws  as  will  foster  and  aid  the  agricultural,  mining,  and  manufacturing 
interests  of  the  State.*^  They  shall  provide,  as  far  as  practicable,  by 
general  laws,  for  all  matters  usually  appertaining  to  private  or  local 
legislation.'^    So,  for  all  matters  specified  in  §  395.^ 

But  no  law  or  tax  may,  in  jMichigan,  be  enacted  by  the  State  or 
any  municipal  corporation  for  any  internal  improvement  except  by 
the  city  of  Grand  Rapids  to  improve  its  river  navigation."^ 

The  legislative  power  of  the  Territories  extends  to  all  rightful 
subjects  of  legislation  not  inconsistent  with  the  Constitution  and 
laws  of  the  United  States. ^° 

The  allowable  province  of  legislation  other  than  its  general  con- 
stitutional limitations  will,  however,  be  best  defined  by  the  limita- 
tions and  restrictions  on  legislation  contained  in  this  chapter, 

§  392.  Suspending  Laics }^  —  By  the  Constitutions  of  most  States, 
laws  can  only  be  suspended  by  the  Legislature  ^-  or  by  authority 

'  Ga.  3,  7,  22;    Me.  4,  3,   1;  Vt.    Miss.  88;   N.  J.  4,  7,  II ;   N.  Y.  3,  18; 

2,  9.  S.  C.  3,  34  ;   W.  Va.  6,  39 ;  Wis.  4,  32. 

2  N.  H.  1,  31.  »  Mich.  1893,  p.  431.   See  also  §  324. 

3  N.  H.  2,  5;  Mass.  2,  1,  1,  4.  '°  U.  S.  R  S.  1851. 

*  N.  H.  2,  82.  "  This    matter  has  been   fully  dis- 

*  Col.  Sched.  4;  111.  Sched.  19;  lo.  cussed  in  Book  I.  The  dispensing 
12,  1 ;  Md.  3,  56 ;  Mo.  Sched.  15 ;  power  of  the  king  was  claimed  by 
N.  D.  68 ;  N.  J.  10,  12 ;  Okla.  5,  45 ;  James  II. ;  denied  in  a  memorable 
Tex.  3,  42;  W.  Va.  Sched.  22 ;  Wy.  21,  speech  by  Chief  Justice  Jones,  who 
14.  The  question  whether  a  State  was  thereupon  dismissed ;  and  finally 
Constitution  is  self-executing  is  else-  prohibited  in  the  Bill  of  Rights  a  few 
where  discussed;   see  §  2,  note.  years  later.     See  §  127  for  habeas  cor- 

*  Ark.  10,  1.  pus;  §  88  for  stay  laws. 

'  Me.  4,  3,  13.  '-  Ala.  21;    Ark.  2,  12;    Del.  1,  10; 

8  Ala.  104;    lo.  3,  30;    Md.  3,  33;    Ind.  1,26;   Ky.  15;   La.  188;  Mass.  1, 


292  THE   STATE   CONSTITUTIONS  [BOOK   III 

derived  from  the  Legislature ; '  and  not  for  the  benefit  of  any  private 
association,  corporation  or  incHvidual.^ 

§  393.  Laivs  Impairing  Cojiirads.^  —  By  the  Constitutions  of 
nearly  all,  the  Legislature  are  forbidden  to  pass  laws  impairing  the  ob- 
ligation of  contracts,*  or  destroying  the  remedy  for  their  enforcement, 
and  cannot  revive  any  rights  or  remedy  barred  by  lapse  of  time,  etc.* 

By  that  of  Louisiana,  vested  rights  may  not  be  divested,  unless 
for  purposes  of  public  utility,  adequate  compensation  being  first 
made  (compare  Article  9).  So,  in  one  other,  no  laws  taxing  retro- 
spectively sales,  purchases,  or  other  acts  previously  done,  can  be 
passed.^  But  the  Legislature  may,  in  Ohio,  by  general  laws,  au- 
thorize courts  to  carry  into  effect,  upon  such  terms  as  are  just  and 
equitable,  the  manifest  intention  of  parties  and  officers,  by  curing 
omissions,  defects,  and  errors  in  instruments  and  proceedings  arising 
out  of  their  want  of  conformity  with  the  laws  of  the  State. ^  In  New 
Hampshire  retrospective  laws  for  the  decision  of  civil  causes  are 
forbidden ;  ^  so  of  retrospective  laws  taking  away  a  cause  of  action, 
or  destroying  a  defence.^ 

§  394.  Laws  to  be  General}^  —  In  many  States,  the  Constitution 
provides  that  there  shall  be  no  special,  local,  or  private  law  in  any  case 
for  which  provision  has  been  (or  can  be  ")  made  by  general  law.^' 
Or,  in  several,  in  any  case  where  the  relief  sought  can  be  given  by 
any  State  court. '^  And  whether  a  general  law  can  be  made  applicable 
or  not  is  declared,  in  Missouri,  Minnesota,  Kansas,  and  Alabama, 
to  be  a  judicial  question,  despite  any  legislative  assertion  to  the  con- 

20 ;    Md.  Decln.  of  Rts.  9 ;    Me.  1,  13 ;  Tex.  1,  16 ;  Utah  1,  18 ;  Va.  58 ;  Wash.  1, 

N.  C.  1,  9;  N.  H.  1,  29;  N.  M.*  1851,  23;  AV.  Va.  3,  4;  Wis.  1,  12;  Wy.  1,  35. 
July  12.  §  19;    O.  1,  18;    Ore.  1,  22;         «  Ala.  95;  Okla.  5,  52.    See  §  630. 
Pa.  1,  i2;    S.  C.  1,  13;    S.  D.  6,  21;         «  N.  C.  1,  32. 
Tex.  1,  28;  Va.  7;  Vt.  1,  15.  '  O.  2,  28. 

1  Del.,   Ky.,   La.,  Mass.,  Md.,  Me.,         »  N.  H.  1,  2,  3. 

N.  H.,  N.  M.,*  Ore.,  Pa.,  S.  C,  S.  D.,  Vt.         »  Ala. ;   Fla.  3,  33  ;  Okla.  5,  52. 

2  Ala.  108;  Va.  64.  >°  Compare  also  §§  17,  391. 

'  U.  S.  C.  1,  10.     See  §  141,  note  1.  "  Cal. ;  111. ;  Ky. ;  Minn.  1891,  p.  19; 

*  Ala.  22;  Ark.  2,  17;  Ariz.*  Bill  of  Mo.;  Tex.;  Wy. ;  Okla. 

Rts.  19;    Cal.  1,  16;    Col.  2,  11;    Fla.  '-  Ala.   105,    109;    Ark.  5,   25;    Cal. 

Decln.  of  Rts.  17;    Ga.  1,  3,  2;    Ida.  4,25;  Col.  5,25;  Ga.  1,4,  1;  111.4,22 

1,  16. ;  m.  2,  14;   Ind.  1,  24;   lo.  1,21;  Ind.   4,  23;    Kan.  2,    17;     1905,543 

Ky.    19;    La.   166;    Me.  1,   11;    Mich.  Ky.  59;    Md.  3,  33;    Miss.  87;    Mo 

4,43;  Minn.  1,11;  Miss.  16;  Mo.  2,  15 ;  4,  53;    Mon.  5,  26;    N.  D.  70;    Neb 

Hon.  3,  11 ;    N.  D.  16,  5 ;    Neb.  1,  16 ;  3,  15 ;  Nev.  4,  21 ;  Pa.  3,  7 ;  S.  C.  3,  34 

Nev.  1,  15;  N.  J.  4,  7,  3;  N.  M.*  1851,  S.  D.  3,  23;    Okla.  5,  59;   Terr.  U.  S 

July  12,  §  14;    O.  2,  28;    Okla.  2,  15;  1886,  818;    Tex.  3,  56;    Utah  6,  26 

Ore.   1,  21;    Pa.   1,   17;    R.  I.   1,   12;  Va.  51;    W.  Va.  6,  39;   Wy.  3,  27. 

S.  C.  1,  8;    S.  D.  6,  12;    Tenn.  1,  20;  '^  Ala.;  Ark.;  Ky.  60;  Miss.;  Pa. 

Va.  5,20;  W.  Va. 


PAET   III]  LEGISLATION  293 

trary.  In  some,  every  statute  is  a  public  law  unless  otherwise  de- 
clared in  the  statute  itself.' 

Nor  can  the  Legislature  indirectly  enact  a  special  or  local  law  by 
the  partial  repeal  of  a  general  law.-  But  laws  repealing  local  or 
special  laws  may  be  passed.^  A  general  law  is  one  which  applies 
to  the  whole  State.* 

So,  in  Georgia,  no  general  law  affecting  private  rights  can  be 
varied  in  any  particular  case,  by  special  legislation,  except  with 
the  free  consent,  in  writing,  of  all  persons  to  be  affected  thereby.^ 
And  in  Texas,  no  man,  or  set  of  men,  shall  ever,  by  special  law,  be 
exempted  or  relieved  from  any  public  duty  imposed  by  general  laws.* 
In  New  Jersey,  no  general  law  shall  embrace  any  provision  of  a 
private,  special,  or  local  character.^  No  special  law  may  exempt 
any  person  etc.,  from  the  operation  of  any  general  law.^ 

§  395.  Local  or  Special  Laws  ^  in  most  States  and  in  many 
cases  are  forbidden  by  the  State  Constitutions. 

Land:  Thus,  in  detail,  are  forbidden,  in  the  several  States,  all 
such  laws  laying  out  or  opening  roads  or  highways ;  '"  vacating 
streets,  roads,  plats,  and   public   squares ;  "    authorizing    or   pro- 

'  Ind.  4,  27 ;  Ore.  4,  27 ;   S.  C.  6,  4.  fifty  different  restrictions  in  one  State 

2  Ala. ;     Ky.   60 ;     La.    49 ;     Miss. ;  alone.    The  most  concise  classification 

Mo. ;  Minn. ;  N.  D. ;  Pa.  3,  7.  the    author    has   been    able    to    make 

*  Ky. ;  La. ;  Mo. ;  Minn. ;  N.  D. ;  mounts  up  to  one  hundred  and  twenty 
Pa. ;  S.  D.  14 ;  Utah.  matters  upon  which  special  legislation 

*  Ala.  1 10.  is  forbidden,  throughout  the  States  and 

*  Ga.  1,  4,  1.  Territories.  The  statement  in  the 
®  Tex.  16,  43.  text  is  beheved  to  be  substantially 
^  N.  J.  4,  7,  4.  accurate,  though  it  would  be  well  in 

*  Ala.  104.  any  case  where  a  State  is  referred  to, 

*  The  distrust  of  the  people  of  their  to  consult  the  exact  wording  of  the 
representatives  is  in  nothing  more  constitutional  provision  to  which 
shown  than  in  the  increasing  number    reference  is  made. 

of  matters  they  are  forbidden  to  meddle  '"  Cal.  4,  25 ;   Col.  5,  25 ;   Del.  2,  19 

with;    these  restrictions  will  be  found  Ida.  3,  19;    111.  4,  22;    Ind.  4,  22;    lo 

generally    noted    under    their    several  3,  30;    Ky.  59;    La.  48;    Minn.  4,  33 

subjects.    The  growing  adoption  of  the  Amt.  1881,  p.  22;    1891,  p.  19;    Miss 

initiative  and  referendum  (see  §  309)  90 ;   Mo.  4,  53 ;   Mon.  5,  26 ;   N.  D.  69 

is   a   more   noteworthy   instance   still.  Neb.  3,  15;  N.  J.  4,  7,  11 ;  N.  Y.  3,  18 

FinaUy,    the    Southern    and    Western  Okla.   5,   46;    Ore.   4,  23;    Pa.  3,   7 

States    have    found    it    necessary    to  Terr.   U.   S.    1886,   818;    Tex.   3,   56 

expressly     forbid     their     Legislatures  Utah  6,  26;  Wash.  2,  28;  W.  Va.  6,  39 

from  passing  local  or  special  laws  in  an  Wis.  4,  31 ;  Wy.  3,  27. 

immense  variety  of  matters.     Connec-  "  Ark.    5,    24 ;     Cal. ;     Col. ;     Del. 

ticut,  Massachusetts,  New  Hampsliire,  Fla.  3,20;  Ida.;  111.;  Ind.;  lo. ;  Ky. 

and  Vermont  have  no  such  restrictions.  La. ;   Mich.  4,  23  ;   Minn. ;   Mo. ;   Mon. 

but  otherwise  they  are  now  common  N.    D. ;     Neb.;     Nev.    4,   20;     N.   J. 

to  every  State  in  the  Union,  and  in  N.  Y. ;  Okla. ;  Ore. ;  Pa. ;  S.  D.  3,  23 

some    instances    extend    to    forty    or  Terr.;    Tex.;    Utah;    W.  Va. ;    Wy. 


294  THE   STATE   CONSTITUTIONS  [BOOK   III 

viding  for  the  sale  or  conveyance  of  real  estate; '  or  of  any  {prop- 
erty;" and  so,  in  others,  "providing  for  the  sale  or  conveyance  of 
the  real  estate  of  persons  under  disability;""'  so  of  their  personal 
estate;'  and  in  a  few  others,  "providing  for  the  sale  of  real  estate 
of  persons  under  disability  by  executors,  administrators,  guardians, 
or  trustees;"'*  or  "affecting  the  estates  of  minors  or  persons  under 
disability ;  "  ®  or  providing  for  the  sale  of  church  property,  or  property 
held  for  charitable  use.^ 

Draining  swamps:^  or  for  ditches;'  relating  to  fences;'"  or 
the  straying  of  livestock ;  "  declaring  streams  navigable ;  "  or  relat- 
ing to  water-courses.'^ 

Changing  the  law  of  descent:  "  giving  effect  to  informal  or  invalid 
deeds  or  wills ;  '^  authorizing  deeds  to  be  made  for  lands  sold  for 
taxes.'" 

Liens:  authorizing  the  creation,  extension,  or  impairing  of  liens. '^ 

Relating  to  cemeteries,  graveyards,  or  public  grounds  not  of  the 
State. '« 

Money:  in  relation  to  interest  on  money.'" 

Persons:  legitimating  any  children  (in  Tennessee,  any  person) 
not  born  in  lawful  wedlock ; ""  changing  the  name  of  any  person ;  ^* 
or  of  any  place ;  "  or  corporation ;  -^   adopting  any  child;  -*  constitut- 

>  Ala.  104 ;   Ark. ;   Mich.  >«  W.  Va. 

2  Ala.  »'  Cal.,  Ida.,  Ky.,  Mo.,  Mon.,  N.  D., 

^Cal.;     Col.;      Fla. ;      Ida.;      111.;  Okla.,  Pa.,  Tex.,  Wy. 

Ky.  63;    Minn.;    Miss.;    Mon.;    Neb.;  >»  Mo.,  Okla.,  Pa.,  Tex. 

Nev.;  N.J.  4,  7,  7;  Utah;  Va. ;  Wash.  '«  Ala.,   Cal.,   Col.,    Ida.,    111.,    Ind., 

W.  Va. ;  Wis. ;  Wy.  Ky.,  La.  Minn.,  Miss.,  Mo.,  Mon.,  N.  D. 

^  Minn.,  Miss.,  Wash.,  Wis.  Neb.,  N.  Y.,  Ore.,  Pa.,  Tex.,  Utah,  Va., 

«  Ind. ;  Md.  3,  33 ;  Ore.  Wash.,  W.  Va.,  Wy. 

«  Cal.,  Ida.,  La.,  Minn.,  Mo.,  Mon.,  ^o  Ala.;     Ark.;     Cal.;     Fla.;     Ida.; 

N.  D.,  Okla.,  Pa.,  Terr.,  Tex.,  Wash.,  Ky. ;  La. ;  Minn. ;  Miss. ;  Mo. ;  Mon. ; 

Wy.  N.  C.  2,  11 ;  N.  D. ;  Okla. ;  Pa. ;  S.  C.  3, 

^  W.  Va.;  S.  C.  Amt.  1905,  482.  34;  Tenn.  11,  6;  Terr.;  Tex.;   Wy. 

8  N.  Y.  "  Ala.,    Ark.,  Cal.,   Fla.,    Ida.,    111., 

»  Del.  Ind.,  lo.,  Ky.,  La.,  Md.,  Minn.,  Miss., 

'°  Del.,  Ky.,  Va.  Mo.,  Mon.,  N.  C,  N.  D.,  Neb.,  Nev., 

"  Del.,  Ky.,  Va.  N.  Y.,  Okla.,  Ore.,  Pa.,  S.  C,  S.  D., 

>=  Ky.,  Va.  Tenn.,  Tex.,  Terr.,  Utah,  Va.,  Wash., 

"  Ala.  Wis.,  Wy. 

"  Ala.,   Cal.,   Col.,    Ida.,    111.,    Ky.,  -^  Cal.,  Ida.,  111.,  Ky.,  Minn.,  Miss., 

La.,  Minn.,  Miss.,  Mo.,  Mon.,  N.   D.,  Mo.,   Mon.,    Neb.,    Okla.,    Pa.,    S.    C, 

Neb.,  N.  J.,   Okla.,   Pa.,  Terr.,  Tex.,  Tex.,  Utah,  Wy.,  or  lake  or  river :  Minn. 

Utah,  W.  Va.,  Wy.  ==^  Ala.,  Mon.,  N.  D.,  S.  D.,  Va. 

•5  Ala.,  Cal.,  Col.,    Fla.,   Ida.,    Ky.,  =■•  Ala.,   Cal.,   Fla.,   Ida.,    Ky.,    La., 

La.,   Md.,   Minn.,   Mo.,   Mon.,   N.    D.,  Md.,   Minn.,    Mo.,    Okla.,    Pa.,    S.   C, 

Okla.,  Tex.,  Wash.,  Wy.  Tenn.,  Tex. 


PART    III]  LEGISLATION  295 

ing  one  person  the  heir  of  another ;  *  declaring  any  person  of  age ;  ^ 
"emancipating  minors;"  ^   reheving  femes  coverts.* 

Divorce:   granting  divorces ; '^   concerning  alimony.* 

Franchises :  granting  to  any  person  or  corporation  any  exclusive 
privilege,  immunity,  or  franchise ;  ^  or  any  special  exemption  from 
a  general  law.^ 

Granting  to  any  person  or  corporation  the  right  to  lay  down  rail- 
road tracks ;  ®  to  railroads,  bridges,  etc.,  conferring  power  of  eminent 
domain ;  ^^  for  granting  State  lands."  Providing  for  building  bridges, 
or  chartering  bridge  companies ;  '^  except  bridges  across  streams 
forming  the  boundary  of  the  State. '^ 

Chartering  or  licensing  ferries:  ^*   booms,  dams,  or  fisheries. ^^ 

Chartering,  or  licensing  roads  or  turnpike  companies :  ^®  incorpo- 
rating railroads;  '^   or  other  works  of  internal  improvement.^^ 

Creating  corporations,  generally  (Ida.,  Minn.,  S.  C,  Wash.),  or 
amending,  renewing,  extending,  or  explaining  the  charters  thereof;  ^^ 
remitting  forfeiture  of  the  charter  of  a  private  corporation  except,  etc.-" 
See  §§  501,  504.    Authorizing  the  construction  of  street  railways.-^ 

Regulating  labor,  trade  or  manufacturing,^^  mining,-^  or  agri- 
culture.-* Creating  banks -^  (see  §  550);  insurance  companies;-" 
or  loan  and  trust  companies.^^ 

Debts:  providing  or  changing  methods  for  the  collection  of  debts, 

'  Fla.,  Minn.,  Miss.,    S.    D.,  Utah,    Miss.,  Mo.,  Mon.,  N.  D.,  Neb.,  N.  Y., 

Wash.,  Wis.  Okla.,  Pa.,  Tex.,  W.  Va.,  Wy. 

=^  Ala.,  CaL,  CoL,  Ida.,  Ky.,  Minn.,        '^  La.,  Mo.,  N.  Y.,  Pa.,  Tex.,  or  the 

Mo.,  Mon.,  N.  D.,  Okla.,  Tex.,  Wash.,    Hudson  or  East  River  (N.  Y.). 

Wy.  '*  Ala.,   Cal.,   Col.,    Ida.,    111.,    Ky., 

3  La.  La.,  Minn.,  Miss.,  Mo.,  Mon.,  N.  D., 

*  Ky.  Neb.,  Okla.,   Pa.,   S.    D.,   Tex.,  Utah, 


5  Ala. ;  Ark. ;  Cal. ;  Col. ;  Fla. 
Ida.;  in.;  Ind. ;  Ky. ;  La.;  Md. 
Miss.;  Mo.;  Mon.;  N.  C.  2,  10 
N.  D. ;  Neb.;  Nev. ;  O. ;  Okla.;  Ore. 
Pa.;  S.  D. ;  Tenn.  11,  4;  Tex.;  Utah 


Wash.,  W.  Va.,  Wis.,  Wy. 
'*  Ky.,  Miss.,  Va. 

'"  Ala.,  Cal.,  Ida.,  Ky.,  Miss.,  Mon., 
N.  D.,  Wy. 
"  Okla.,  Tex. 
Va. ;  W.  Va. ;  Wy.  '»  Okla.,  Tex. 

»  N.  C.     See  also  §  430.  '^  Ala.,  Ky.,  La.,  Minn.,  Miss.,  Mo., 

'  Cal.,  Col.,   111.,  La.,    Minn.,    Mo.,    Pa.,  S.  C,  Terr.  U.  S.  R.  S.  1889,  Va., 
Mon.,  N.  D.,  Neb.,  N.  J.,  N.  Y.,  Pa.,    Wis. 


S.    D.,   Terr.,    Utah,    Va.,   Wy.      See 

=»  Va. 

§  16. 

21  La. 

»  Va. 

=2  Ky.,  La.,  Mo.,  Pa.,  Tex.,  Va. 

»  Col.,  111.,  Ky.,  Miss.,  Mo.,    Mon., 

"  Ky.,  Mo.,  Pa.,  Tex.,  Va. 

N.  D.,  Neb.,  N.  J.,  N.  Y.,  Pa.,  Terr., 

="  La. 

Wy. 

^'  Ala.  247 ;  Mon. ;  N.  Y.  8,  4 ;  S.  C. ; 

•»  Miss. 

Wy. 

"  Ala.,  Miss. 

2«  Mon.,  Wy. 

^  Ala.,  Cal.,  Col.,  Ida.,  111.,  Ky.,  La., 

27  Mon.,  Wy. 

296 


THK   STATE    CONSTITUTIONS 


[book    III 


enforcing  judgments,  or  prescribing  the  effect  of  judicial  sales  of 
real  estate.'    Exempting  property  from  execution.^ 

Ojfwrrs:  legalizing  the  unauthorized  or  invalid  acts  of  any  officer 
or  agent  of  the  State  or  a  municipality/  except  as  acja'uist  the  State.* 

Criminal:  regulating  the  jurisdiction,  fees,  powers,  or  duties  of 
aldermen,  justices  of  the  peace,  constables,  magistrates,  etc.^ 

Juries:  selecting  or  impanelling  grand  or  petit  jurors;"  or  ex- 
empting from  jury  duty.^ 

Any  laws  for  the  punishment  of  crimes  and  misdemeanors ;  ^ 
pardoning  or  commuting  the  sentence  of  any  criminal;  "  concern- 
ing li(pior  or  allowing  local  option ;  '°  remitting  fines,  penalties,  or 
forfeitures ;  "  restoring  to  citizenship  any  person  convicted  of  in- 
famous crime.  ^^ 

For  the  protection  of  game  or  fish.'^  But  in  others,  such  laws  may 
be  enacted  to  apply  only  to  localities  specially  designated.'* 

Municipal:  laws  locating  or  changing  county  seats;  '^  or  erecting 
new  townships  or  counties ;  '"  or  changing  county  or  township 
lines; '^   or  school  districts.'* 

"Providing  for  the  bonding  of  cities,  towns,  or  other  municipali- 
ties." '^ 

Incorporating  villages  and  towns ;  -"  towns  only ;  -'  or  cities."^  Or, 
in  several,  amending  the  charters  thereof. ^^    "For  the  organization 


»  La.,  Mo.,  Pa.,  Tex.,  Va. 

2  Ala. 

3  Cal.,  Ida.,  Ky.,  La.,  Mo.,  N.  D., 
Wash. 

*  Cal.,  Ky.,  N.  D.,  Wash. 

'  Ala.,  Cal.,  Col.,  Fla.,  Ida.,  111., 
Ind.,  Minn.,  Miss.,  Mo.,  Mon.,  N.  D., 
Neb.,  Nev.,  Ore.,  Pa.,  Terr.,  Tex.,  Utah, 
Wy. 

«  Cal.,  Col.,  Fla.,  Ida.,  Ind.,  Ky., 
Miss.,  Mon.,  N.  D.,  Neb.,  Nev.,  N.  J., 
N.  Y.,  Okla.,  Ore.,  S.  C,  Tex.,  W.  Va., 
Wy. 

'  Ala.,  Terr. 

«  Ala.,  Cal.,  Fla.,  Ida.,  Ind.,  Ky., 
Mon.,  N.  D.,  Nev.,  Ore.,  Terr.,  Utah, 
Va.,  Wy. 

«  Ariz.,*  Bill  of  Rts.  28. 
'«  Ky. 

"  Ala.,  Cal.,  Col.,  Ida.,  111.,  Ky., 
La.,  Minn.,  Mo.,  Mon.,  N.  D.,  Neb., 
Okla.,  Pa.,  S.  D.,  Terr.,  Tex.,  Utah, 
Wash.,  W.  Va.,  Wy. 

'2  Ala.,  Cal.,  Ida.,  Ky.,  Mon.,  N.  C, 
N.  D.,  Terr.,  Wy. 


'3  Col.,  111.,  Ky.,  Neb.,  S.  C. 

"  Cal.  Amt. ;  Tenn.  11,  13  ;  Tex.  3,  56. 

'5  Ala.,  Cal.,  Col.,  Ida.,  lU.,  lo., 
Ky.,  Minn.,  Mo.,  Mon.,  N.  D.,  Neb., 
N.  Y.,  Okla.,  S.  D.,  Terr.,  Tex.,  Utah, 
Va.,  Wash.,  W.  Va.,  Wis.,  Wy. 

'«  Ga.,  Mo.,  N.  Y.,  Pa. 

''  Ga.  11,  1,3;  Mo.;  Pa.;  Va.  128; 
Wash. ;    Minn. 

i«  Ala.,  Del.,  S.  C. 

19  Ala.,  Neb. 

^°  Ala. ;  111. ;  Minn. ;  Mo. ;  N.  D ; 
Neb. ;  N.  Y. ;  Okla. ;  Pa. ;  S.  C. ;  S.  D. 
Terr.;  Tex.;  Utah;  Va.  117;  Wash.; 
W.  Va. ;   Wy. 

21  111.,  lo..  Mo.,  Neb.,  Pa.,  S.  D., 
Tex.,  W.  Va.,  Wis.,  Wy. 

=2  Ala.,  lU.,  lo..  Mo.,  N.  D.,  Neb., 
Okla.,  Pa.,  S.  C,  S.  D.,  Terr.,  Tex., 
Utah,  W.  Va.,  Wy. 

"3  Ala.,  m..  Mo.,  N.  D.,  Neb.,  Okla., 
Pa.,  S.  C,  S.  D.,  Terr.,  Tex.,  Utah, 
W.  Va.,  Wy.,  Wis. 


TART    III]  LEGISLATION  297 

and  classification  of  municipal  corporations."  *  Authorizing  mu- 
nicipal corporations  to  pass  laws  inconsistent  with  general  laws." 

llegulating  county  and  township  business ;  ^  or  the  affairs  of  mu- 
nicipalities generally ;  *  or  the  election  of  county  or  township  offi- 
cers ;  ^  or  their  compensation ; "  in  relation  to  the  fees  and  salaries 
of  any  officer;  ^  except,  that  compensation  may  be  suitably  graded 
in  proportion  to  population  and  necessary  services  required.^ 

Creating  or  altering  fees  or  salaries  during  the  term  for  which  the 
officer  is  appointed ;  '•*  regulating  costs,  charges,  or  fees ;  '"  author- 
izing extra  compensation  to  any  public  officer,  agent,  or  contractor 
after  his  service  has  been  rendered  or  the  contract  entered  into.'^ 
Creating  offices,  or  prescribing  the  powers  and  duties  of  municipal 
officers.'" 

Taxes,  schools:  for  the  assessment  or  collection  of  taxes  for  either 
State  or  municipal  purposes ;  '^  or  for  a  private  purpose ;  "  ex- 
empting property  from  taxation ;  '^  or  from  levy  or  sale ;  '^  exempt- 
ing any  person  from  jury,  road,  or  civil  duty.'^ 

Providing:  for  the  management  of  the  common  schools;  '^  or  for 
their  support ;  '^  or  for  the  apportionment  of  the  school  fund."" 

For  extending  the  time  for  the  collection  of  taxes;  ^^  for  other- 
wise relieving  any  assessor  or  collector  of  taxes  from  due  perform- 
ance of  his  duties,  or  his  sureties  from  liability.-" 

Refunding  money  paid  into  the  State  treasury.-^ 

'  S.  C.  8,  1.  Nev. ;    N.   J.   4,    7,    12 ;    Ore. ;   Terr. ; 

2  Ala.  89.  Tex.  8,  3 ;  Utah ;  Va. ;  Wash. ;  Wis. ; 

3  Cal.,   Col.,    Ida.,    III.,  Ind.,   Mo.,    Wy. 
Mon.,  N.  D.,  Neb.,  Nev.,  N.  J.,  Pa.,        "  Minn. 

S.  D.,  Tex.,  Utah,  W.  Va.,  Wy.  '^  Ala. ;     Cal.;     Ida.;    La.;     Minn.; 

*  Mo.,  Okla.,  Tex.  Miss. ;    Mo. ;    Mon. ;    N.   Y. ;    N.   D. ; 

5  Cal.,  Fla.,  111.,  Ind.,  Ky.,   Minn.,  Neb.  9,  2;    Okla.;    Pa.;    Tex.;    Va. ; 

N.  D.,  Neb.,  Nev.,  N.  J.,  N.  Y.,  Ore.,  Wy. 
Wy.  '^  Miss. 

«  lU.   10,  12 ;    Ind. ;    S.  C.  (county        "  Miss. ;  S.  C.  Amt.  1905,  482. 
only) ;  Minn.  '«  Cal.,    Col.,    Ida.,    111.,    Ky.,    La., 

'  Cal,  Col.,  Fla.,  Ind.,  Ky.,   Minn.,  Minn.,  Mo.,  Mon.,  N.  D.,  Neb.,  N.  J., 

Mon.,  N.  D.,  Okla.,  Wy.  Okla.,  Pa.,  S.  D.,  Terr.,  Utah,  Wash., 

»  Ind.  Wy. 

'Ida.;    111.   4,    22;    Neb.;    N.  J. ;        '»  Ind.,  La.,  Minn.,  Mo.,  N.  J.,  Okla., 

N.  Y.;   S.  D.;  Terr.;   Utah;  Va.    See  Ore.,  Pa.,  Tex. 
§  214.  -»  Minn.,  Wash.,  Wis. 

'»  Ala.  96.  -'  Cal.,    Ida.,  La.,  Md.,  Minn.,  Mo., 

"  Mich.  4,  21;  Va.     See  also  §  214.  Mon.,  N.  D.,  Okla.,  Tex.,  Va.,  Wash., 

"  Cal.,      Fla.     (except     municipal),  Wis.,  Wy. 
Ida.,  Minn.,  Mo.,  Mon.,  N.  D.,  Okla.,        -  Ky.,  La.,  Mo.,  Okla.,  Tex. 
Pa.,  Tex.,  Wy.  "^  Cal.,  Ida.,  Ky.,  La.,   Md.,    Miss., 

>^  Ala. ;     Cal. ;     Fla. ;     Ida. ;     Ind. ;  Mo.,  Mon.,  Nev.,  Okla.,  Pa.,  Tex.,  Va. 
lo. ;   Ky. ;  Minn. ;  Mo. ;  Mon. ;  N.  D. ; 


298  THE    STATE    CONSTITUTIONS  [BOOK    III 

Releasing  persons  Ironi  dehts  due  to  the  State,  or  to  any  niuniei- 
pality  tlierein ;  '  or  to  any  person  or  corporation  therein ;  -  unless 
such  special  law  is  recomnieiuled  by  the  governor  or  treasury  depart- 
ment.^   See  §  323. 

Releasing  taxes  or  title  to  forfeited  lands."* 

Regarding  elections.^ 

Procedure:  regulating  the  practice  in  the  courts ; "  or  their  juris- 
diction; '  except  as  to  municipal  courts.^  Concerning  any  civil  or 
criminal  actions.  ° 

Providing  for  the  change  of  venue  in  civil/"  or  in  criminal  proceed- 
ings." 

Changing  the  rules  of  evidence  in  judicial  proceedings.^^ 

Prescribing  the  limitations  of  civil  ^^  or  criminal  actions.^* 

Granting  pensions.'^ 

§  396.  Laws  to  be  Uniform.  —  All  general  laws,  or  laws  of  a 
public  nature,  must  by  the  Constitutions  of  many  States  be  uniform 
in  their  operation  throughout  the  State.  ^® 


Article  40.     Land  Laws 

§  400.  Tenure.  —  By  the  Constitutions  of  a  few  States  all  land 
is  declared  allodial.'^  And  so,  in  four,  the  ultimate  property  in  land 
is  declared  to  vest  in  the  people,  by  right  of  sovereignty.^^ 

And  all  land  to  which  the  title  fails  by  defect  of  heirs  reverts  '®  or 

>  Ida.;      Ky.      52;      Md. ;      Mon. ;    Neb.,  Nev.,  N.  J.,  N.  Y.,  Okla.,  Ore., 
N.    D. ;    S.   D.  3,  23 ;    Nev. ;   Utah   6,    Pa.,  Terr.,  Tex.,  Utah,  Va.,  Wy. 
27;   Va.;  Wash.;  Wy.  '-  Col.,  La.,  Mo.,  Mon.,  N.  D.,  Okla., 

^  Cal.  Pa.,  Tex.,  Va.  Wy. 

3  Md.  13  Ala.,  Cal.,   Col.,    Ida.,    Ky.,   Mo., 

*  W.  Va.  Mon.,  N.  D.,  Okla.,  Tex.,  Wash.,  Wy. 

'*  Ala.,     Ida.,     Ky.,     Okla.,     Tex., 
Wash. 
'^  Va. 
»«  Ariz.*  Bill  of  Rts.  17;  Cal.  1,  11 


Ala.;  Cal.;  Col.;  Fla. ;  Ida. 
111. ;  Ind. ;  Ky. ;  La. ;  Minn. ;  Mo. 
Mon.;  N.  D. ;  Neb.;  Nev.;  N.  Y. 
Okla.;    Ore.;    Pa.  3,  7;    8,  7;    Terr. 

Tex.;  Va.;   W.  Va.  Fla.  3,  21;  Ga.   1,  4,   1;    Ind.  4.  23 

«  Cal.,    Col.,    Fla.,    111.,    Ida.,    Ind.,  lo.  1,  6;  3,  30;  Kan.  2,  17;  N.  D.  11 

Ky.,    La.,    Miss.,    Mo.,    Mon.,    N.    D.,  Nev.  4,  21;    O.  2,  26;    Okla.  5,  59 

Neb.,    Nev.,    Okla.,    Ore.,    Pa.,    Terr.,  S.  C.  3,  34;   Utah  1,  24;   Wis.   Amt. 

Tex.,  Utah,  Va.,  W.  Va.,  Wy.  4,  32;   Wy.  1,  34. 

'  Ky.,  Mo.,  Okla.  >^  Ark.  2,  28;    Minn.  1,  15;    N.  Y. 

*  Fla.  1,  12;   Wis.  1,  14. 

*  La.  18  N.  Y.  1,  10 ;  S.  C.  14,  3  ;  Wis.  9,  3. 
*"  (As  below,  except  in  Arkansas).  ^^  This  word  is  improperly  used,  and 
"  Ala.,  Ark.,   Cal.,    Fla.,    Ida.,    111.,  misleading.    See  §  401,  note  7. 

Ind.,  Ky.,  La.,  Miss.,  Mo.,  Mon.,  N.  D., 


PART    III] 


LEGISLATION 


299 


escheats  to  the  people.*  The  proceeds  of  escheated  lands  (or  other 
property)  are,  by  many  State  Constitutions,  to  be  applied  to  the 
public  schools.^ 

So  the  property  of  the  State  liquor  dispensary.'' 

§  401.  Feudal  Tenures.  —  With  all  their  incidents,  are  abolished 
by  the  Constitutions  of  a  few  States.* 

So,  in  two,  all  fines,  quarter-sales,  and  like  restraints  upon  aliena- 
tions are  especially  declared  void.^ 

Except  in  one,  rents  and  certain  services  heretofore  lawfully 
created; "  and  except  the  liability  to  "escheat" '  for  lack  of  heirs.** 

§  402.  Entails,  Primogeniture,  and  Perpetuities.  —  Entails  are, 
by  declaration  in  two  of  the  Territories,  entirely  abolished ;  ^  so, 
in  two  States,  the  Legislature  is  to  regulate  entails  so  as  to  prevent 
perpetuities.*'' 

By  the  Constitutions  of  several  States  perpetuities  "  are  forbid- 
den ;  *'  except  for  eleemosynary  purposes.*^ 

And  the  law  of  primogeniture  may  never  be  in  force.** 

§  403.    Mortmain.^'" —  The  Constitution  of  Maryland  declares  all 


'  Mich.  13,  3 ;  N.  Y. ;  S.  C. ;  Wis. 
=  Cal.  9,  4;    Col.  9,  5;    Fla.  12,  4; 

10.  9,  2,  3;    Kan.  6,  3;    Mich.;   Mo. 

11,  6;  Neb.  8,  3;  Nev.  11,3;  Ore.  8, 
2;  S.  C.  11,  11;  W.  Va.  12,  4. 

3  S.  C.  11,  12. 

*  Ark.  2,  28;  Minn.  1,  15;  N.  Y. 
1,  11;  Wis.  1,  14. 

«  N.  Y.  1,  14;  Wis. 

«  N.  Y. 

^  Land  being  allodial  (§  400),  it  fol- 
lows that  there  can  be,  properly  speak- 
ing, no  escheat.  The  word  is,  however, 
commonly  used  in  America,  and  will 
hereafter  be  used  in  this  book,  to  mean 
both  escheat  proper  and  the  vesting  of 
the  State's  title  by  right  of  sovereignty. 

«  N.  Y.  1,  13. 

«  Ariz.*  Bill  of  Rts.  23  (except  as  in 
§  1313);    N.  M.*  1851,  July  12,  §  17. 

'"  N.  C.  2,  15;  Vt.  2,  36. 

''  Compare  also  §  580. 

>-  Ark.  2,  19;  Cal.  20,  9;  Mon. 
19,  5 ;  N.  C.  1,  31 ;  Nev.  15,  4  ;  N.  M.*  ; 
Okla.  2,  32;  Tenn.  1,  22;  Tex.  1,  26; 
Wy.  1,  30. 

'3  Cal.,  Mon.,  Nev. 

'^  N.  M.* ;  Okla.  2,  32 ;  Tex. 

*^  No  corporation  shall  be  created 
or  licensed  in  this  State  for  the  purpose 
of  buying,  acquiring,  trading,  or  deal- 


ing in  real  estate  other  than  real  estate 
located  in  incorporated  cities  and  towns 
and  as  additions  thereto ;  nor  shall 
any  corporation  doing  business  in  this 
State  buy,  acquire,  trade,  or  deal  in 
real  estate  for  any  purpose  except  such 
as  may  be  located  in  such  towns  and 
cities  and  as  additions  to  such  towns 
and  cities,  and  further  except  such  as 
shall  be  necessary  and  proper  for 
carrying  on  the  business  for  which  it 
was  chartered  or  licensed,  nor  shall  any 
corporation  be  created  or  hcensed  to  do 
business  in  this  State  for  the  purpose 
of  acting  as  agent  in  buying  and  selling 
land :  Provided,  However,  That  cor- 
porations shall  not  be  precluded  from 
taking  mortgages  on  real  estate  to 
secure  loans  or  debts  or  from  acquiring 
title  thereto  upon  foreclosure  of  such 
mortgages  or  in  the  collection  of  debts, 
conditioned  that  such  corporation  or 
corporations  shall  not  hold  such  real 
estate  for  a  longer  period  than  seven 
years  after  acquiring  such  title :  And 
Provided,  Further,  That  this  section 
shall  not  apply  to  trust  companies 
taking  only  the  naked  title  to  real 
estate  in  this  State  as  a  trustee,  to  be 
held  solely  as  security  for  indebtedness 
pursuant  to  such  trust :   And  Provided, 


300  TUE   STATE   CONSTITUTIONS  [BOOK   III 

gifts,  sales,  and  (Icvises  ot"  land  or  [HMsoiial  projxirty  to  religious  sects 
or  for  religious  uses,  without  the  prior  or  subsequent  sanction  of  the 
Legislature,  void ;  '    so  of  devises  and  legacies  oidy.- 

Except,  in  two  States,  a  sale,  etc.,  of  land  for  a  church,  parsonage, 
or  cemetery,  and  actually  so  used;^  but  such  land  must  not,  in 
Maryland,  exceed  five  acres  in  extent. 

The  United  States  laws  provide  that  in  the  Territories  no  religious 
or  charitable  association  or  corporation  shall  hold  real  estate  of  a 
greater  value  than  $50,000.* 

§  404.  Monopolies  are  by  the  Constitutions  of  several  States 
declared  odious  and  forbidden;  see  §  580.  But  municipahties  etc., 
may  regulate  slaughtering  in  Louisiana. 

§  405.  Long  Leases.  —  In  a  few  States  there  are  constitutional 
provisions  forbidding  leases  or  grants  of  agricultural  land  reserving 
rent,  for  a  longer  period  than  twelve  years ;  ^  fifteen  years ;  ®  or 
twenty-one  years.  ^ 

§  406.  Record  of  Conveyances.  —  In  Vermont  the  Constitution 
provides  that  all  conveyances  of  land  shall  be  recorded ;  ^  so,  in 
Louisiana,  all  mortgages ;  ^  all  deeds  and  mortgages  recorded  are 
prima  facie  evidence  of  their  proper  execution.'" 

So,  in  Louisiana,  all  "privileges"  on  real  estate;  but  privileges  for 
expenses  of  last  illness  or  taxes  need  not  be  recorded,  and  they  lapse 
in  three  years. 

§  407.  Lands  of  the  United  States.  —  The  new  States  have  con- 
stitutional provisions  to  forbid  the  Legislature  from  interfering  with 
the  title  of  the  United  States  to  its  lands  in  the  State ;  "  or  from  inter- 
fering with  any  laws  Congress  may  find  necessary  for  securing  the 
title  of  such  land  to  bona  fide  purchasers.'" 

In  the  Territories,  no  law  can  be  passed  "interfering  with  the 
primary  disposal  of  the  soil."  '^  The  Indian  reservations  are  secured 
to  National  Government  control.'* 

Further,  That  no  public  service  cor-  *  Wis.  1,  14. 

poration  shall  hold   any  land,   or  the  ^  Minn.  1,  15. 

title  thereof,  in  any  way  whatever  in  *  Vt.  2,  35. 

this  State,  except  as  the  same  shall  be  ^  La.  186. 

necessary     for     the     transaction     and  *"  Fla.  16,  21. 

operation  of  its  business  as  such  public  "  Ida.    21,    19;     Kan.    Ordinance 

service  corporation.     Okla.  22,  2.  Minn.  2,  3  ;    Mo.  14,  1 ;   N.  D.  203  (2) 

'  Md.  Decln.  of  Rts.  38.  Nev.  Ordinance ;  Okla.  1,  3 ;  S.  D.  22,  1 

^  Miss.  270.  Utah  3,  2 ;  Wash.  26,  25 ;  Wis.  2,  2. 

3  Md. ;  Mo.  2,  8.  "  Kan.,  Minn.,  Mo.,  Wis. 

*  U.  S.  R.  S.  1890.  "  U.  S.  R.  S.  1851. 

«  Mich.  18,  12 ;  N.  Y.  1,  13.  "  Ida.,  N.  D.,  Okla.,  S.  D.,  Wash. 


PAET   III]  LEGISLATION  301 

§  408.  Public  Lands.  —  In  four  States  the  Constitution  provides 
that  no  pubhc  land  of  the  State  shall  be  sold  or  granted  except  to 
actual  settlers;*  and  not  donated  to  private  corporations  or  indi- 
viduals or  railroads."  I^ands  and  public  tracts  are  only  sold  at 
market  value.^    The  price  may  not  be  less  than  $10  an  acre.* 

The  settler  must  occupy  the  land  for  three  years  in  order  to  per- 
fect his  title.^ 

The  amount  granted  is  eighty  acres  to  a  single  man,  one  hundred 
and  sixty  to  the  head  of  a  family ;  ^  one  hundred  and  sixty  acres  to 
any  individual ;  ^  eighty  acres  to  any  settler ;  ^  three  hundred  and 
twenty  acres.  ^ 

The  right  of  the  State  to  mines  and  minerals  is,  in  Texas,  released 
by  the  Constitution;  *"  but  in  Arizona  "the  precious  metals  are  the 
jewels  of  sovereignty,  and  inhere  in  the  sovereign  power ;  no  person 
can  acquire  absolute  title  to  any  public  domain  in  which  such  metals 
may  be  found  without  the  express  consent  of  such  power."  ** 

In  Texas  the  State  may  grant  lands  to  railway  companies,  under 
special  restrictions.*^ 

No  entry  by  warrant  can  now  be  made,  and  possession  for  ten 
years  or  payment  of  taxes  for  five  years  since  1865  gives  good  title 
as  against  the  State.*^  There  are  similar  numerous  provisions  in  the 
newer  States  as  to  School  land ;  **  but  practically  all  the  State  land 
is  now  taken  up.  In  New  York,  there  are  constitutional  provisions 
rendering  invalid  purchases  or  contracts  for  the  sale  of  lands  with 
Indians.*^  There  are  frequently  Commissioners  of  Public  Lands  pro- 
vided for.*" 

No  claim  to  any  public  lands  by  any  trespasser  thereon  by  reason 
of  occupancy,  cultivation,  or  improvement  thereof,  shall  ever  be  rec- 
ognized; nor  shall  compensation  ever  be  made  on  account  of  any 
improvement  made  by  such  trespasser.*^ 

1  Cal.  17,3;  Fla.  16,5;  Mon.  19,  7;  *  Ida.,  Mon. 

Tex.  14,  4.  =  Tex.  14,  6. 

=  Ala.  99;    Miss.  95;    S.    C.   3,  31.  «  Tex. 

Nor  sold  at  a  less  price  than  to  in-  ^  Ida. 

dividuals.      Tliis,    however,    shall    not  ^  Fla. 

prevent  the  Legislature  from  granting  *  Cal. 

a    right    of    way,    not    exceeding    one  '"  Tex.  14,  7. 

hundred    feet    in    width,    as    a    mere  "  Ariz.  Bill  of  Rts.  21. 

easement,    to    railroads,    across    State  '^  Tex.  14,  3-5. 

land,  and  the  Legislature  shall  never  "  W.  Va.  13,  2  &  3. 

dispose    of   the   land   covered  by  said  '^  S.  D.  Art.  8. 

right  so  long  as  such  easement  exists:  '*  N.  Y.  1,  15. 

Ala. ;  Miss.  95;  S.  C.  3,  31.  '«  Wash.  3.  24.     See  §  201. 

3  Mon.  19,  3  ;  S.  D.  8,  7 ;  Utah  20,  1 ;  "  N.  D.  1G3  ;  S.  D.  S,  10. 
Wash.  16,  1. 


302  THE   STATE   CONSTITUTIONS  [BOOK   III 

§  400.  A  Forest  Preserve  "as  now  fixed  by  law"  is  to  be  kept 
wild  and  never  leased,  sold,  or  timber  eut,  or  be  taken  by  any  corpo- 
ration pnblic  or  private.' 

The  Legislature  shall  enact  laws  to  prevent  the  destruction  of  and 
to  j)reserve  the  forests  on  the  lands  of  the  State,  and  upon  any  part 
of  the  public  domain,  the  control  of  which  may  be  conferred  by 
Congress  upon  the  State.- 

State  Highways  may  be  provided  for  by  law ;  ^  so,  in  Michigan 
the  Constitution  provides  for  county  or  town  roads  and  for  State 
wagon  roads ;  *  and  in  many  States  for  a  State  highway  Commission.^ 


Article  41.     Navigable  Waters  and  Easements 

§  410.  Navigable  Waters,  by  the  Constitutions  of  a  few  States, 
shall  forever  remain  public  highways,  free  to  the  citizens  of  the  States 
and  the  United  States,  without  impost  or  toll.® 

So,  the  Constitution  declares  that  no  person  or  corporation  can 
obstruct  the  navigation  of  the  navigable  waters  of  the  State ;  ^  and 
no  navigable  stream  can  be  dammed  or  bridged  without  authority 
of  law;  and  no  law  shall  prejudice  the  right  of  individuals  to  the 
free  navigation  of  such  stream,  or  preclude  the  State  from  further 
improvement  of  it.^ 

§  411.  Special  Streams.  —  The  Constitutions  of  some  States 
specially  declare  certain  streams  navigable,  and  forever  free,  as  in 
four  States  the  Mississippi ;  ^  and  in  three  of  them,  navigable  waters 
leading  into  the  Mississippi ; '"  and  in  one,  navigable  waters  lead- 
ing into  the  St.  Lawrence;  ^'  and  so,  navigable  waters  bordering  the 
State,  with  the  rivers  leading  into  the  same.'' 

§  412.  Jurisdiction.  —  In  several  States  the  Constitution  pro- 
vides that  the  State  shall  have  concurrent  jurisdiction  on  all  rivers 
bordering  on  the  State  so  far  as  they  form  the  boundary  of  the  State 
and  any  other  State.'^    The  State  owns  the  tide  and  shores  of  natural 

'  N.  Y.  7,  7.  '  Cal.  15,  2;  Miss.  81. 

2  Col.  IS,  6 ;  Mon.  19,  3 ;  Utah,  18,  1.         »  Mich.  18,  4. 

3  Cal.  1901,  p.  960;  Minn.  1897,  333  ;  »  Minn.  2,  2 ;  Mo.  1,  1 ;  Tenn.  1,  29 ; 
N.  Y.  1903,  p.  1454.  Wis.  9,  1. 

*  Mich.  1893,  p.  434,  1899,  p.  478;  '»  Minn.,  Mo.,  Wis. 

Mich.  1905,  p.  531.  "  Wis. 

«  See  §  202.  '^  Miss.,  N.  C. 

«  Ala.  24;    Minn.  2,  2;    S.  C.  1,  28;  ''  Ind.  14,  2;   Minn.  2,  2;   Mo.  1,  1; 

14,  1 ;  Wis.  9,  1.    See  Book  I.,  Cliap.  II.  S.  C.  14,  1 ;  Wis.  9,  1. 


PART   III]  LEGISLATION  303 

waters  to  high-tide  line,  and  on  natural  rivers  and  lakes  to  ordinary 
high  water.' 

§  413.  Water  Front.  —  By  the  Constitution  of  California,  the 
right  of  eminent  domain  exists  in  the  State  to  all  frontages  on  navi- 
gable waters;  and  no  person  or  corporation  can  exclude  the  right 
of  way  to  such  water,  when  required  for  a  public  purpose ;  and  all 
tide  lands  within  two  miles  '"  of  any  incorporated  city  or  town,  front- 
ing on  the  waters  of  any  harbor  used  for  navigation,  shall  be  withheld 
from  grant  or  sale  to  any  person  or  corporation ;  ^  so  of  water  front, 
and  rights  beyond  the  harbor  lines;  and  wharf  leases  may  not  be 
for  more  than  30  years.* 

§  414.  Wharves.  —  In  two  States,  the  Constitutions  provide  that 
no  tax,  toll,  impost,  or  wharfage  shall  be  imposed,  demanded,  or 
received  from  the  owner  of  any  merchandise  or  commodity,  for  the 
use  of  the  shores,  or  any  wharf  erected  on  the  shores,  or  in  or  over 
the  waters  of  any  navigable  stream,  unless  the  same  be  authorized 
by  the  Legislature.^ 

§  415.  Drains.  —  In  two  States  the  Legislature  are  authorized  to 
pass  laws  permitting  the  owners  or  occupants  of  lands  to  construct 
drains  and  ditches  for  agricultural  and  sanitary  purposes  across  the 
lands  of  others.® 

§  416.  Franchises.  — (See  §§  502,  536.)  The  right  to  collect  rates 
for  water  furnished  to  a  municipality  is  declared  to  be  a  franchise, 
not  to  be  exercised  except  by  authority  of  law  and  in  the  manner  by 
law  prescribed.^  The  county  commissioners  may  empower  reason- 
able maximum  rates  for  the  use  of  water,  whether  furnished  by  per- 
sons or  corporations ;  ^  so,  in  Idaho,  the  Legislature ;  ^  and  in  Texas, 
the  right  to  regulate  tolls  or  freights,  for  the  use  of  roads,  bridges, 
ferries,  landings,  or  wharves,  shall  always  remain  in  the  Legislature.'" 

No  railway,  gas,  water,  telephone,  light,  etc.,  company  shall  con- 
struct its  works  in,  over,  or  under  the  streets  without  consent  of  the 
municipal  authorities  is  first  obtained ;  "  so,  in  California,  the  Legis- 
lature shall  pass  laws  to  regulate  the  charges  of  telegraph  or  gas  com- 
panies, wharfingers,  and  warehousemen,  where  there  is  a  public  use.'' 

'  Wash.  17,  1.  §  92.   Drainage  is  declared  a  public  use 

2  So,  substantially,  witliin  one  mile   (S.  D.,  1903,  70). 

(Wash.  15,  1-2).  ■'  Cal.  14,  2 ;  Ida.  15,  2. 

3  Cal.  15,  3.  »  Col.  16,  8. 
*  Wash.  15,  2.  «  Ida.  15,  5. 
«  Ala.  24;  S.  C.  1,  28.  '"  Tex.  12,  3. 
0  111.  4,  3,  1 ;   N.  Y.  1,  7.  See  also       "  Ky.  163. 

»2  Cal.  4,  33. 


304  THE   STATE   CONSTITUTIONS  [BOOK   III 

"No  municipal  corporation  sliall  ever  grant,  extend,  or  renew  a 
franchise,  without  the  approval  of  a  majority  of  the  (piahfied  electors 
residing  within  its  corporate  limits,  who  shall  vote  thereon  at  a  gen- 
eral or  special  election ;  and  the  legislative  body  of  any  such  corpora- 
tion may  submit  any  such  matter  for  approval  or  disapproval  to  such 
electors  at  any  general  municipal  election,  or  call  a  special  election 
for  such  purpose  at  any  time  u{)on  thirty  days'  notice;  and  no  fran- 
chise shall  be  granted,  extended,  or  renewed  for  a  longer  term  than 
twenty-five  years. 

"Whenever  a  petition  signed  by  a  number  of  qualified  electors  of 
any  municipal  corporation  equal  to  twenty-five  per  centum  of  the 
total  number  of  votes  cast  at  the  next  preceding  general  municipal 
election,  demanding  that  a  franchise  be  granted,  extended,  or  re- 
newed, shall  be  filed  with  the  chief  executive  officer  of  said  corpora- 
tion, the  chief  executive  oflScer  shall,  within  ten  days  thereafter,  call 
a  special  election,  at  which  he  shall  submit  the  question  of  whether 
or  not  such  franchise  shall  be  granted,  extended,  or  renewed,  and  if, 
at  said  election,  a  majority  of  the  said  electors  voting  thereon  shall 
vote  for  the  grant,  extension,  or  renewal  of  such  franchise,  the  same 
shall  be  granted  by  the  proper  authorities  at  the  next  succeeding 
regular  meeting  of  the  legislative  body  of  the  city. 

"Every  municipal  corporation  within  this  State  shall  have  the  right 
to  engage  in  any  business  or  enterprise  which  may  be  engaged  in  by 
a  person,  firm,  or  corporation  by  virtue  of  a  franchise  from  said 
corporation."  ^ 

§  417.  Hunting  and  Fishing.  —  The  Constitution  of  Vermont 
provides  that  the  inhabitants  shall  have  liberty  at  seasonable  times 
to  hunt,  fish,  and  fowl  on  lands  not  enclosed." 

The  Legislature  may  establish  fish  and  game  districts  and  laws  to 
regulate  the  same.^ 

§  418.  Use  of  Water.  —  Several  Western  Constitutions  declare 
that  the  water  of  every  natural  stream  (not  heretofore  lawfully  ap- 
propriated) within  the  State  is  the  property  of  the  public*  But  the 
right  to  divert  the  unappropriated  waters  of  any  such  stream  to  bene- 
ficial uses  shall  never  be  denied ;  priority  of  appropriation  shall  give 
the  better  right  as  between  those  using  the  water  for  the  same  pur- 

'  Okla.  18,  5.  3  cal.  1901,  p.  948. 

*  Vt.   2,  40.    William   Rufus  three         *  Ariz.*  Bill  of  Rts.  22 ;  Col.  16,  5 ; 
times  promised  his  people  the  right  of    Ida.  15,  1 ;  Wy.  8,  1. 
free  hunting,  which  was  claimed  as  an 
English  liberty. 


PART  III] 


LEGISLATION 


305 


pose;  and  if  the  water  is  insufficient,  those  using  it  for  domestic 
purposes  have  the  preference;  and  those  using  it  for  agricultural 
purposes  have  the  preference  over  manufacturers.'  No  individual 
or  corporation  shall  have  the  right  to  appropriate  streams  or  ponds 
exclusively  to  their  own  private  use  except  as  may  be  provided  by 
law.^ 

The  use  of  the  waters  of  the  State  for  irrigation,  mining,  and  manu- 
facturing purposes  shall  be  deemed  a  public  use.^ 

The  use  of  all  waters  now  appropriated,  or  that  may  hereafter  be 
appropriated  for  sale,  rental,  or  distribution ;  also  of  all  water  origi- 
nally appropriated  for  private  use,  but  which  after  such  appropriation 
has  heretofore  been,  or  may  hereafter  be  sold,  rented,  or  distributed, 
is  hereby  declared  to  be  a  public  use,  and  subject  to  the  regulation 
and  control  of  the  State  in  the  manner  prescribed  by  law.*  For 
Idaho,  see  also  note.^ 

All  flowing  streams  and  natural  water-courses  shall  forever  re- 


'  CoL  16,  6. 

2  Ariz.* 

3  Wash.  21,  1. 

^  Ida.  15,  1 ;  Mon.  3,  15. 

^  "  And  in  any  organized  mining 
district,  those  using  the  water,  for 
mining  purposes  or  milling  purposes 
connected  with  mining,  shall  have 
preference  over  those  using  the  same 
for  manufacturing  or  agricultural  pur- 
poses. But  the  usage  by  such  subse- 
quent appropriators  shall  be  subject 
to  such  provisions  of  law  regulating 
the  taking  of  private  property  for 
public  and  private  use,  as  referred  to 
in  section  fourteen  of  Article  I.,  of  this 
constitution."     (Ida.  15,  3.) 

"Whenever  any  waters  have  been, 
or  shall  be,  appropriated  or  used  for 
agricultural  purposes,  under  a  sale, 
rental,  or  distribution  thereof,  such 
sale,  rental  or  distribution  shall  be 
deemed  an  exclusive  dedication  to 
such  use ;  and  whenever  such  waters 
so  dedicated  shall  have  once  been  sold, 
rented  or  distributed  to  any  person 
who  has  settled  upon  or  improved  land 
for  agricultural  purposes  with  the 
view  of  receiving  the  benefit  of  such 
water  under  such  dedication,  such 
person,  his  heirs,  executors,  adminis- 
trators,   successors,    or    assigns,    shall 


not  thereafter,  without  his  consent,  be 
deprived  of  the  annual  use  of  the  same, 
when  needed  for  domestic  purposes, 
or  to  irrigate  the  land  so  settled  upon 
or  improved,  upon  payment  therefor, 
and  comphance  with  such  equitable 
terms  and  conditions  as  to  the  quantity 
used  and  times  of  use,  as  may  be 
prescribed  by  law."    (Ida.  15,  4.) 

"Whenever  more  than  one  person 
has  settled  upon,  or  improved  land 
with  the  view  of  receiving  water  for 
agricultural  purposes,  under  a  sale, 
rental,  or  distribution  thereof,  as  in 
the  last  preceding  section  of  this 
article,  provided,  as  among  such 
persons  priority  in  time  shall  give 
superiority  of  right  to  the  use  of  such 
water  in  the  numerical  order  of  such 
settlements  or  improvements;  but 
whenever  the  supply  of  such  water 
shall  not  be  sufficient  to  meet  the 
demands  of  all  those  desiring  to  use 
the  same,  such  priority  of  right  shall  be 
subject  to  such  reasonable  limitations 
as  to  the  quantity  of  water  used  and 
times  of  use  as  the  Legislature,  having 
due  regard,  both  to  such  priority  of 
right  and  the  necessities  of  those  sub- 
sequent in  time  of  settlement  or 
improvement,  may  by  law  prescribe." 
(Ida.  15,  5.) 


20 


306  THE   STATE   CONSTITUTIONS  [BOOK   III 

main  the  property  of  the  State  for  mining,  irrigating,  and  manufactur- 
ing purposes.' 

Water  being  essential  to  industrial  prosperity,  of  limited  amount, 
and  easy  of  diversion  from  its  natural  channels,  its  control  must  be 
in  the  State,  which,  in  providing  for  its  use,  shall  equally  guard  all 
the  various  interests  involved.- 

All  existing  rights  to  the  use  of  any  of  the  waters  in  this  State  for 
any  useful  or  beneficial  purpose,  are  hereby  recognized  and  con- 
firmed.^ 

Municipal  corporations  shall  have  the  same  right  as  individuals  to 
acquire  rights,  by  prior  appropriation  and  otherwise,  to  the  use  of 
water  for  domestic  and  municipal  purposes,  and  the  Legislature  shall 
provide  by  law  for  the  exercise  upon  the  part  of  incorporated  cities, 
towns,  and  villages  of  the  right  of  eminent  domain  for  the  purpose 
of  acquiring  from  prior  appropriators,  upon  the  payment  of  just 
compensation,  such  water  as  may  be  necessary  for  the  well-being 
thereof  and  for  domestic  uses.* 

The  Legislature  shall  have  power  and  shall  provide  for  a  system 
of  levees,  drains,  and  ditches  and  of  irrigation  in  this  State  when 
deemed  expedient,  and  provide  for  a  system  of  taxation  on  the  lands 
affected  or  benefited  by  such  levees,  drains,  and  ditches  and  irriga- 
tion, or  on  crops  produced  on  such  land,  to  discharge  such  bonded 
indebtedness  or  expenses  necessarily  incurred  in  the  establishment 
of  such  improvements;  and  to  provide  for  compulsory  issuance  of 
bonds  by  the  owners  or  lessees  of  the  lands  benefited  or  affected  by 
such  levees,  drains,  and  ditches  or  irrigation.^ 

§  419.  Riparian  Rights.  —  There  are  special  provisions  for 
levees,  etc.,  in  Louisiana.^ 


Article  42.    Personal  Property 

§  420.  Record.  —  By  the  Constitution  of  Louisiana,  "  privileges  " 
may  exist  without  record,  except  in  cases  where  the  Legislature  pre- 
scribe otherwise.'' 

§  42L  Seal.  —  By  the  Constitution  of  Arkansas  private  (i.  e.  not 
corporate)  seals  are  abolished,  and  no  distinction  shall  exist  between 

»  N.  D.  210.  *  Okla.  16,  3. 

^  Wy.  1,  31.  «  La.  290. 

3  Utah  17,  1.  '  La.  187. 
*  Wy.  13,  5. 


PART   III]  LEGISLATION  307 

sealed  and  unsealed  instruments,  in  contracts  between  individuals, 
until  otherwise  provided  by  law/ 

§  422  Interest}  —  The  Constitution  of  Tennessee  provides  that 
the  Legislature  may  fix  the  rate  of  interest,  and  such  rate  shall  be 
uniform  throughout  the  State,  and  may  also  provide  for  a  conven- 
tional {i.  e.,  to  be  specially  contracted  for)  rate  of  interest  not  to 
exceed  ten  per  cent.^  So,  in  Arkansas,  the  Constitution  fixes  the 
legal  rate,  in  contracts  where  no  rate  is  specified,  at  six  per  cent;  but 
shall  pass  a  law  limiting  the  rate  for  which  individuals  may  contract 
to  ten  per  cent/  In  Texas  the  legal  rate  is,  by  the  Constitution, 
made  six  per  cent;  the  special  contract  rate  is  limited  at  ten  per 
cent;  and  all  over  ten  per  cent  is  declared  usurious,  and  the 
Legislature  are  to  pass  usury  laws/  In  Maryland  the  legal  rate  is 
six  per  cent  until  otherwise  provided  by  the  Legislature." 

§  423.  Money.  —  The  Constitutions  of  New  Hampshire  and 
IMassachusetts  provide  that  the  money  mentioned  in  the  Constitution 
shall  be  computed  at  6^.  8f/.  to  the  ounce  of  silver.'' 

§  424.  Trust  Funds.  —  By  several  State  Constitutions,  the  Legis- 
lature is  forbidden  to  pass  laws  to  authorize  the  investment  of  trust 
funds  in  the  bonds  or  stock  of  private  corporations.^ 

§  425.  Stock-jobbing.  —  The  California  Constitution  provides 
that  the  liCgislature  shall  pass  laws  to  regulate  or  prohibit  the  buying  or 
selling  of  the  shares  of  the  stock  of  corporations  in  any  stock  board ;  * 
and  that  all  contracts  for  the  sale  of  stock  on  a  margin  or  for  future 
delivery  are  void,  and  the  money  paid  therefor  may  be  recovered. 

§  426.  Lotteries.  —  Are  prohibited  by  the  Constitutions  of  nearly 
all;  and  in  all  these  States  (except  R.  I.,  Wis.,  Neb.,  Md.,  Fla.,  Ida., 
S.  D.,  and  Wash.)  the  sale  of  lottery  tickets  is  forbidden;  '^  so,  in 
several  of  "gift  enterprises;  "  pool  selling;  ^^  or  all  other  forms  of 
gambling." 

1  Ark.  Sched.  1.  3,  28;   Kan.  15,  3;   Ky.  226;   La.  178 

2  See  also  §  395.  Md.  3,  36;  Mich.  4,  27;  Minn.  4,  31 
»  Tenn.  11,  7.  Miss.  98;  Mo.  14,  10;  Mon.  19,  2 
*  Ark.  19,  13.  N.  D.  Amt.  1 ;  Neb.  3,  21 ;  Nev.  4,  24 
^  Tex.  16,  11;  Amt.  1891,  p.  196.  N.  J.  4,  7,  2;  N.  Y.  1,  9;  O.  15,  6 
»  Md.  3,  57.  Ore.  15,  4 ;  R.  L  4,  12 ;  S.  C.  17,  7 
'  Mass.  2,  6,  3;  N.  H.  2,  96.  S.  D.  3,  25;  Tenn.  11,  5;  Tex.  3,  47 
«  ALa.  74;    Col.  5,  36;    Mon.  5,  37;    Uta.   6,   28;     Va.   60;    Wasli.   2,   24 

Pa.  3,  22 ;  Wy.  3,  38.    See  also  §  519.  W.  Va.  6,  36 ;   Wis.  4,  24. 

»  Cal.  4,  26.  "  Ala.,  Cal.,    Col.,   Ill,    Mo.,  Mon., 

>«  Ala.  65;   Ark.  19,  14;   Ariz.*  Bill  Neb.,  S.  D.,  Tex.,  W.  Va. 

of  Rts.  27;    Cal.  4,  26;    Col.    18,  2;        '^  Del.,  N.  Y. 

Del.  2,  17;    Fla.  3,  23;    Ga.   1,  2,  4;        "  Del.,  Neb.,  N.  J.,  N.  Y. 

Ida.  3,  20;    111.  4,  27;    Ind.  15,  8;    lo. 


308  THE   STATE   CONSTITUTIONS  [BOOK   III 


Article  43.     Law  of  Persons 

§  430.  Marriage.  —  By  the  Constitutions  of  many  States,  the 
Legislature  can  grant  no  divorce,'  noi-  allowance  of  alimony;-  and 
in  one  all  absolute  divorces  are  forbidden.-' 

But  in  two,  the  Legislature  may  enact  general  laws  regulating 
divorce  and  alimony;^  so,  of  course,  in  all  other  States.  In  one, 
no  contract  of  marriage  otherwise  duly  made  shall  be  invalid  for 
want  of  conformity  to  the  requirements  of  any  religious  sect.^  In  one, 
no  absolute  divorce  can  be  granted  except  on  the  concurrent  verdicts 
of  two  juries  at  different  terms  of  the  court;  and  the  last  jury  shall 
determine  the  disabilities  and  rights  of  the  parties." 

§  431.  Age  of  Consent.  —  "No  unmarried  woman  shall  legally 
(sic)  consent  to  sexual  intercourse  who  shall  not  have  attained  the 
age  of  14."  ' 

§  432.  Names.  —  In  Tennessee  the  Legislature  has  no  power 
to  change  the  names  of  persons,  or  to  pass  acts  adopting  or  legitimat- 
ing persons,  but  shall  confer  this  power  on  the  courts.** 

§  433.  Warehouses.  By  the  Constitutions  of  two  States  all  ele- 
vators or  storehouses  where  grain  or  other  property  is  stored  for  a 
compensation,  whether  the  property  stored  be  kept  separate  or  not, 
are  declared  public  warehouses.^ 

The  owners  or  managers  of  public  warehouses  are  required  to 
make  public  statements  of  grain  or  goods  stored,  and  the  warehouse 
receipts  issued ;  and  are  not  to  mix  grain  with  grain  of  inferior  grade ; 
and  the  owner  is  to  be  always  at  liberty  to  examine  such  property 
stored,  and  the  books  of  the  warehouse  relating  thereto.^" 

§  434.  Warehouse  Receipts.  —  The  Constitution  of  Illinois  de- 
clares that  the  Legislature  shall  pass  laws  to  prevent  the  issue  of 
false  and  fraudulent  warehouse  receipts;  "  and  (in  Kentucky  also) 
laws  for  the  inspection  of  grain, ^-  and  "for  the  protection  of  pro- 
ducers," etc.^^ 


»  Ga.  6,  15,  1-2. 
'  S.  C.  3,  33. 

«  Tenn.  11,  6.    See  §  395. 
111.  13,  1 ;  Ky.  206. 


>  Del.  2,  18;  lo.  3,  27;  Kan.  2,  18 
Mich.  4,  26 ;  Minn.  4,  28 ;  N.  H.  2,  75 
N.  J.  4,  7,  1;  N.  Y.  1,  9;  O.  2  32 
S.  C.  17,  3;  Tenn.  11,  4;  Wash.  2,  24 
Wis.  4,  24.    See  also  §  395.  >"  111.  13,  2  &  3 

2  Del.  "  111.  13,  6. 

3  S.  C.  '2  III.  13,  7 ;  Ky.  206 
*  N.  C.  2,  10 ;  Tenn.  "  Ky. 

'  Cal.  20,  7. 


TART    III]  LEGISLATION  309 

§  435.  Drawbacks  and  Rebates. —  (See  also  §  41G.)  By  the 
Constitution  of  Texas,  all  drawbacks  and  rebatement  of  insurance, 
freight  transportation,  carriage,  wharfage,  storage,  compressing,  bal- 
ing, repairing,  or  for  any  other  kind  of  labor  or  service,  of  or  to  any 
cotton,  grain,  or  other  produce,  to  any  carrier,  shipper,  merchant, 
or  factor  not  the  owner  thereof,  are  prohibited.' 

§  436.  Carriers.  —  The  Constitution  of  Illinois  provides  that  all 
railroads  and  other  common  carriers  shall  weigh  or  measure  grain  at 
points  where  it  is  shipped,  and  receipt  for  the  full  amount,  and  shall 
be  responsible  for  the  delivery  of  such  amount  to  the  owner  or  con- 
signee thereof  at  the  place  of  destination. - 

§  437.  Cattle  and  Stock.  —  The  Legislature  may  pass  laws  for 
the  regulation  of  live-stock  and  the  protection  of  stock-raisers,  having 
a  local  application;  and  also  pass  general  and  special  laws  for  the 
inspection  of  cattle,  stock,  and  hides,  and  the  regulation  of  brands; 
provided  that  any  local  law  thus  passed  shall  be  submitted  to  the 
freeholders  of  the  section  to  be  affected  thereby  and  approved  by 
them.^ 

§  438.  Physicians.  —  The  Constitutions  of  three  States  provide 
that  laws  may  be  passed  prescribing  the  qualifications  of  medical 
practitioners,  and  to  punish  for  malpractice  (but,  in  Texas,  that  no 
preference  shall  be  given  to  any  one  school  of  medicine).* 

Article  44.     Health  and  Morality 

§  440.  Live  Stock.  —  The  Legislature  shall  pass  all  necessary 
laws  to  provide  for  the  protection  of  live  stock  against  the  introduc- 
tion or  spread  of  pleuro-pneumonia,  glanders,  splenetic  or  Texas 
fever,  and  other  infectious  or  contagious  diseases.  The  Legislature 
may  also  establish  a  system  of  quarantine  or  inspection,  and  such 
other  regulations  as  may  be  necessary  for  the  protection  of  stock 
owners  and  most  conducive  to  the  stock  interests  within  the  State.^ 

§  44L  Board  of  Health  (see  also  §  202).  —There  shall  be  es- 
tablished by  law  a  State  board  of  health  and  a  bureau  of  vital  sta- 
tistics in  connection  therewith,  with  such  powers  as  the  Legislature 
may  direct.^  Boards  of  Health  shall  be  created  by  the  Legislature 
wherever  they  may  be  necessary,  with  power  to  make  such  regu- 

'  Tex.  16.  25.     See  also  §  524.  *  La.  178;  Tex.  16,  31 ;  Wash.  20,  2. 

-  111.  13,  4.  »  Ida.  16,  1 ;  Wy.  19,  1. 

3  Tex.  16,  23.  «  Wash.  20,  1. 


310  THE    STATE   CONSTITUTIONS  [BOOK   III 

latlons  as  shall  protect  the  health  of  the  community  and  abate 
nuisances.* 

§  442.  —  Inspection  Laws.  —  No  State  office  sluiii  l)e  continued 
or  created  for  the  inspection  or  measuring  of  any  merchandise,  manu- 
facture or  commodity ;  but  any  county  or  municipality  may  appoint 
such  officers  when  authorized  by  law.- 

§  443.  Dealing  in  Futures.  —  The  pernicious  practice  of  dealing 
or  gambling  in  futures  on  agricultural  products  or  articles  of  neces- 
sity, where  the  intention  of  the  parties  is  not  to  make  an  honest  and 
bona  fide  delivery,  is  declared  to  be  against  public  policy;  and  the 
Legislature  shall  pass  laws  to  suppress  it."* 

§  444.  Fire  Protection.  —  The  Legislature  shall  enact  laws  to 
secure  the  safety  of  persons  from  fires  in  hotels,  theatres,  and  other 
public  places  of  resort.* 

§  445,  Liquor  Traffic,  General  Regulation  of,  is  declared  to  belong 
to  the  police  jurisdiction;  and  the  State  may  enact  laws  regulating 
their  sale  and  use  ^  or  regulating  and  prohibiting  their  sale.** 

§  446.  Prohibition  of  the  manufacture  and  sale  (or  giving  away) 
of  intoxicating  liquors  is  found  in  several  State  Constitutions.^ 

Except  for  medical,  mechanical,  and  scientific  purposes ;  ^  and  ex- 
cept cider.® 

In  Colorado  only  the  sale  of  spurious  or  drugged  liquors  is  for- 
bidden.i" 

§  447.  Local  Option.  —  Some  Constitutions  provide  that  the 
Legislature  shall  enact  a  law  whereby  the  qualified  electors  of  any 
city,  county,  town,  or  precinct  may,  by  a  majority  vote,  prohibit  the 
sale  of  liquors  within  the  prescribed  limits." 

In  other  States  they  may  do  so  *^  or  the  dispensary  system  may  be 
established.*^ 

The  County  Commissioners,  not  oftener  than  once  in  two  years 
upon  petition  of  one  fourth  the  registered  voters,  must  call  an  election 
(special)  to  determine  whether  or  no  intoxicating  liquors  or  beer 
shall  be  sold  in  the  county.** 

*  S.  C.  8,  10.  p.  95  (separate  article  applying  to  the 

2  Ala.  77.  whole  State);   N.  D.  217;    O.  15,  9. 

3  La.  189.  »  Kan.,  Me.,  N.  D.,  Okla. 

*  Miss.  83.  "  Me. 

*  La.  181.  '»  Col.  18,  5. 

«  S.  C.  8,  11;  W.  Va.  6,  46;  Va.  62.        "  Ky.  61;    Fla.    19,    1;   Tex.    1891, 

^  lo.  Amt.  1882,  p.  178;  Kan.  Amt.    p.  196. 
1881,  p.  323;    Me.  Amt.  1885,  p.  339;        '-  Va.  62;  Del.  13,  1. 
Okla.  1,  7  (as  to  Indian  reservations) ;        "  Va. 

"  Fla.  19,  1. 


PAET   III]  LEGISLATION  311 

§  448.  Dispensary  System.  —  This  is  expressly  authorized  under 
the  Constitution  of  a  few  States,  and  has  been  carried  into  execution 
in  South  CaroUna,  as  to  sales  exceeding  one  half-pint,  between  sun- 
rise and  sunset,  not  to  be  drunk  on  the  premises.^ 

§  449.  Vagrant  Laws  are  required  to  be  enacted  by  tlie  Consti- 
tution of  Texas.^ 

Poor  Laws.  —  There  are  in  a  few  States  constitutional  provisions 
for  the  support  of  the  poor  by  counties,  and  for  State  asylums  for 
orphans,  deaf,  bhnd,  insane,  or  inebriates.^ 


Article  45.    Labor 

§  450.  General  Principles.  —  The  Legislature  shall  pass  neces- 
sary laws  for  the  protection  of  persons  working  in  mines,  factories, 
and  other  employments  dangerous  to  life  and  deleterious  to  health ; 
and  fix  pains  and  penalties  for  the  enforcement  of  same.* 

The  rights  of  labor  shall  have  just  protection  through  laws  calcu- 
lated to  promote  the  industrial  welfare  of  the  State.^ 

The  Legislature  shall  prohibit  the  political  and  commercial  con- 
trol of  employees.^ 

The  Legislature  shall  provide  for  the  protection  of  the  employees 
of  all  corporations  doing  business  in  this  State  from  interference  with 
their  social,  civil,  or  political  rights  by  said  corporations,  their  agents 
or  employees.^ 

"The  Legislature,  by  appropriate  legislation,  shall  provide  for  the 
enforcement  of  the  provisions  of  this  article."  ^ 

§  45L  Day's  Work.  —  A  few  Western  Constitutions  prescribe  an 
eight-hour  day  in  all  public  work.^ 

1  S.  C.  8,  11.  1903,  ch.  49;   Ida.  13,   2;  Mon.  1903, 

2  Tex.  3,  46.  49  ;  Okla.  23,  2  ;  Utah  16,  6 ;  Wy.  19,  1. 

3  Ala.  88 ;  Ark.  19,  9  &  19  ;  Col.  8,  1 ;  Statutes  to  this  effect  exist  in  several 
Fla.  13,  1  &  3;  Ida.  10,  1;  Kan.  7,  4;  other  States.  For  the  general  subject 
La.  174;  Miss.  86;  Mon.  10,  1;  Okla.  of  labor  legislation  see  the  author's 
17,  3;  Amt.  1887;  Nev.  13,  1  &  3;  "  Handbook  to  the  Labor  Laws  of  the 
N.  C.  11,  8-10;-  S.  C.  12,  1  «fe  3;  Tex.  United  States."  No  American  legisla- 
11,  2;  16,  8  &  42  &  54;  S.  D.  14,  1 ;  ture  has  yet  ventured  to  prescribe  the 
Wash.  13,  1.  hours  of  labor  of  adult  males  in  general 

*  Ida.  Amt.  13 ;  Okla.  23,  5 ;  Wash,  occupations,  and  it  would  be  clearly 
2,  35.     See  also  §  14.  unconstitutional.    The  last  English  law 

*  Utah  16,  1.  of  the  sort  was  under  Ehzabeth  (see 
®  Utah  16,  3.  Book  II).  The  same  is  true  of  the 
^  Miss.  191.  regulation  of  wages  by  law.  The  labor 
®  Utah  16,  7.  of  minors  may  be  regulated  or  prohib- 

*  Cal.  20,  17;  Amt.  1901,  959;  Col.    ited  in  any  or  all  occupations;  and  so 


312  THE    STATE    CONSTITUTIONS  [bOOK    III 

§  452.  Wages.  —  The  Louisiana  Constitution  prescribes  that 
no  hiw  shall  be  passed  fixing  the  price  of  manual  lal)()r.' 

§  453.  Public  Work.  —  But  in  New  York,  by  a  recent  amend- 
ment, "the  Legislature  may  regulate  and  fix  the  wages  or  salaries, 
the  hours  of  work  or  labor,  and  make  provision  for  the  protection, 
safety,  and  welfare  of  persons  employed  by  the  State  or  by  any 
county,  city,  town,  village,  or  other  civil  subdivision  of  the  State,  or 
by  any  contractor  or  subcontractor  performing  work,  labor,  or 
services  for  the  State  or  for  any  city,  county,  town,  village,  or  other 
civil  division  thereof."  ^ 

§  454.  Special  Employments.  —  A  few  Western  States  provide 
in  their  Constitutions  for  an  eight-hour  day  in  mines,^  smelters,^  or 
underground  employment  generally ;  ^  or  even  in  mills  or  factories,^ 
or  in  dangerous  employments.^ 

§  455.  Women  and  Children.  —  Children  under  sixteen,^  twelve," 
or  fourteen,'"  may  not  work  in  mines,  "  workshops,  or  factories  ;^^ 
nor,  if  under  fifteen,  in  places  dangerous  to  life  or  health  or  injurious 
to  morals."  The  Kentucky  Constitution  specifies  (unnecessarily) 
that  the  Legislature  may  fix  such  age.'* 

No  women  or  girls  of  any  age  may  work  in  mines. '^ 

§  456.  Wage-payments.  —  All  wage-earners  in  this  State  em- 
ployed in  factories,  mines,  workshops,  or  by  corporations,  shall  be 
paid  for  their  labor  in  lawful  money.  The  general  assembly  shall 
prescribe  adequate  penalties  for  violations  of  this  section.'^ 

§  457.  Liens.  —  The  Constitutions  of  tliree  States  provide  that 
mechanics,  artisans,  and  material  men  of  every  class  shall  have  a 
lien  upon  the  building  and  articles  repaired  by  them  for  the  value 
of  their  labor  or  material."  And  in  two,  also,  upon  personal  property, 

of  women ;  at  least  as  to  vmhealthy  or  *  Mon. ;  Okla.  24,  4. 

immoral  trades,  except  perhaps  in  the  ®  N.  D.  209 ;   Col.  16,  3. 

women-suffrage  States  or  those  whose  ^°  Utah  16,  1 ;   Wy.  9,  3. 

Constitutions  require  identical  laws  for  *'  Mon.,  N.  D.,  Col. 

the  two  sexes  (see  §§  20,  23-25).  '-  N.  D. 

1  La.  51.  "  Okla.  23,  3. 

2  N.  Y.  12,  1 ;  Amt.  1905.  "  Ky.  243. 
'Col.    1901,    48;     Mon.    1903,    49;  '^  Utah,  Wy. 

Wy.  19,  1.     Similar  laws  are  constitu-        "^  Ky.   244.      In   the    absence  of   a 

tional  when  their  object  is  to  protect  constitutional    provision,    statutes    to 

the  health  of  the  public ;  if  only  that  this  effect  have  usually  been  held  un- 

of  the  men  employed,  quaere.  constitutional ;    but  not  so  in  Massa- 

*  Col,  Mon.  chusetts;     and    there    is    old    English 

*  Col.,  Mon.  precedent  for  the  principle.     See  His- 

*  Mon.  torical  Digest. 

7  Col,  Mon.  "  Cal.  20,  15;  N.  C.  14,  4;  Tex.  16, 


PART    III]  LEGISLATION  313 

for  labor  done  upon  it;  '  or,  in  others,  upon  the  subject-matter  of 
their  labor.^ 

So,  in  two  others,  that  the  I>egislaturc  shall  pass  laws  to  protect 
laborers  on  public  works,  railroads,  and  canals  against  failure  of  the 
contractors  to  pay  their  current  wages  when  due,  and  to  make  the 
corporation  or  individual  for  whose  benefit  the  work  is  done  respon- 
sible for  their  ultimate  payment.^ 

§  458.  Blacklists.  —  The  exchange  of  blacklists  by  railroad 
companies  or  other  corporations,  associations,  or  persons,  is 
prohibited.* 

§  459.  Strikes  and  Boycotts.  —  There  is  as  yet  no  Constitutional 
provision  relating  to  these  matters.  For  injunctions,  contempts, 
etc.,  see  §  662. 

§  460.  Factories,  Mines,  etc.  —  The  Legislature  are  required  to 
pass  laws  for  the  protection  of  miners  ^  (as  by  escapement  shafts, 
ventilation,  etc.),  or  workmen  in  factories,"  or  employments  danger- 
ous to  life  and  deleterious  to  health,''  or  on  railroads.* 

§  461.  State  Inspectors  of  mines,^  factories,  etc.,  are  in  some 
States  provided  for  in  the  Constitution. 

§  462.  Employers'  Liability.  —  (See  also  §  535. )  The  right  of 
action  to  recover  damages  for  injuries  resulting  in  death,  shall 
never  be  abrogated,  and  the  amount  recoverable  shall  not  be  sub- 
ject to  any  statutory  limitation.''^ 

The  defence  of  contributory  negligence  or  of  assumption  of  risk 
shall,  in  all  cases  whatsoever,  be  a  question  of  fact,  and  shall,  at  all 
times,  be  left  to  the  jury.'' 

37.     Statutes   to  this  effect   are  uni-    hereof,  a  right  of  action  shall  accrue 

versal.  to  the  party  injured,  for  the  damage 

'  Cal.,  N.  C.  sustained  thereby,  and  in  all  cases  in 

^  Ida.  13,  6.  this  state,   whenever   the   death   of    a 

^  La.  185  ;   Tex.  16,  35.  person  shall  be  caused  by  wrongful  act, 

*  Utah  16,  4;  N.  D.  212;  Wy.  1,  neglect  or  default,  such  as  would,  if 
22.  death   had   not   ensued,   have  entitled 

^  Ark.  19,  18;    Col.  16,  2;    Ida.  13,  the    party    injured     to    maintain    an 

2;  111.4,29;   Utah  16,  6;   Wash.  2,35;  action  to   recover  damages  in  respect 

Wy.  9,  2 ;    Okla.  23,  5.     So,  for  their  thereof,  the  person  who,  or  the  corpo- 

drainage  (Col.  16,  3).  ration  which  would  have  been  liable,  if 

^  Wash.,  Ida.,  Okla.  death  had  not  ensued,  shall  be  liable 

'  Wash.,  Ida.  to  an  action  for  damages  notwithstand- 

*  Okla.  ing  the  death  of  the  person  injured,  and 
®  Wy.  9,  1.    See  §  202.  the  legislature  shall  provide  by  law  at 

^°  N.  Y.  1, 18  ;  Okla.  23, 7  ;  Utah  16,  5  ;  its  first  session  for  the  manner  in  which 

Wy.  10,  4.     So,  "for  any  injury  to  per-  the  right  of  action  in  respect  thereto 

son  or  property  caused  by  wilful  failure  shall  be  enforced."    In  mines  only  (Wy. 

to  comply  with  the  provisions  of  this  9,  4). 
article,  or  laws  passed  in   pursuance       "  Okla.  23,  6. 


314  THE   STATE   CONSTITUTIONS  [BOOK   III 

Any  provision  of  a  contract,  express  or  implied,  made  by  any 
person,  by  which  any  of  the  benefits  of  tliis  Constitution  is  sought 
to  be  waived,  shall  be  null  and  void;  and  so  of  any  such  pro- 
vision stipulating  for  notice  or  demand  other  than  such  as  may  be 
provided  by  law,  as  a  condition  precedent  to  establish  any  claim, 
demand,  or  liability.' 

It  shall  be  unlawful  for  any  person,  company,  cr  corporation  to 
require  of  its  servants  or  employees,  as  a  condition  of  their  employ- 
ment or  otherwise,  any  contract  or  agreement  whereby  such  persons, 
company,  or  corporation,  shall  be  released  or  discharged  from  lia- 
bility or  responsibility  on  account  of  personal  injuries  received  by 
such  servants  or  employees  while  in  the  service  of  such  person,  com- 
pany, or  corporation,  by  reason  of  the  negligence  of  such  person, 
company,  or  corporation,  or  the  agents  or  employees  thereof;  and 
such  contracts  shall  be  absolutely  null  and  void.- 

§  463.  Prison  Labor.  —  All  labor  of  convicts  confined  in  the 
State's  prison,  shall  be  done  within  the  prison  grounds,  except 
where  the  work  is  done  on  public  works  under  the  direct  control  of 
the  State.^    So  the  contracting  out  of  prison  labor  is  prohibited.* 

§  464.  Alien  Labor.  —  No  person,  not  a  citizen  of  the  United 
States,  or  who  has  not  declared  his  intention  to  become  such,  shall  be 
employed  upon,  or  in  connection  with,  any  State  or  municipal  works.^ 

§  465.  Arbitration.  —  The  Legislature  may  establish  boards  of 
arbitration,  whose  duty  it  shall  be  to  hear  and  determine  all  differ- 
ences and  controversies  between  laborers  and  their  employers  which 
may  be  submitted  to  them  in  writing  by  all  the  parties.''  Such 
boards  of  arbitration  shall  possess  all  the  powers  and  authority  in 
respect  to  administering  oaths,  subpoenaing  witnesses,  and  com- 
pelling their  attendance,  preserving  order  during  the  sittings  of  the 
board,  punishing  for  contempt,  and  requiring  the  production  of 
papers  and  writings,  and  all  other  powers  and  privileges,  in  their 
nature  applicable,  conferred  by  law  on  justices  of  the  peace.' 

»  Okla.  23,  8-9.  *  Miss.  223  ;   Okla.  23,  2 ;   Utah  16, 

2  Mon.  15,  16;   Wy.  10,  4;    19,  1.  3. 

3  Ida.  13,  3;  Ky.  253;  Utah  16,  3.  '  Ida.  13,  5;  Wy.  19,  1.  Such  pro- 
The  Legislature  shall  provide  by  gen-  visions  may,  if  a  treaty  exists,  contra- 
eral  law  for  the  working  of  public  roads  vene  the  Federal  Constitution. 

by  contract  or  by  county  prisoners,  or  *  Ida.  13,  7 ;  Wy.  19,  1. 

both.     Such  law  may  be  put  in  opera-  ^  Ida.    So,  the  Legislature  shall  pro- 

tion  only  by  a  vote  of  the  board  of  su-  vide  by  law  for  a  Board  of  Labor,  Con- 

per\asors  in  those  counties  where  it  may  ciliation  and  Arbitration,  which  shall 

be  desirable  (Miss.  85).  fairly  represent  the  interests  of  both 


PART   III]  LEGISLATION  315 


Article  50.    Private  Corporations 

§  500.  Definition.  —  The  word  corporation ,  as  here  used,  is  de- 
clared by  the  Constitutions  of  many  States  to  mean  all  associations 
or  joint  stock  companies  having  any  of  the  powers  or  privileges  of 
corporations  not  possessed  by  individuals  or  partnerships.' 

§  501.  General  Principles.  —  All  powers  and  franchises  of  cor- 
porations are  derived  from  the  people  and  are  granted  by  their 
agent,  the  government,  for  the  public  good  and  general  welfare,  and 
the  right  and  duty  of  the  State  to  control  and  regulate  them  for  these 
purposes  is  hereby  declared.  The  power,  rights,  and  privileges  of 
any  and  all  corporations  may  be  forfeited  by  wilful  neglect  or  abuse 
thereof.  The  police  power  of  the  State  is  supreme  over  all  corpora- 
tions as  well  as  individuals.-  (See  §  506,  also.)  "Being  creatures 
of  the  State  endowed  for  the  public  good  with  a  portion  of  its  sov- 
ereign powers,  they  must  be  subject  to  its  control."  ^  The  size  and 
functions  of  all  corporations  should  be  so  limited  and  regulated  as 
to  prevent  fictitious  capitalization,  and  provision  should  be  made 
for  the  supervision  and  government  thereof.*  No  exclusive  privi- 
leges can  be  granted  to  a  corporation.^ 

§  .502.  Creation.  —  By  the  Constitutions  of  most  States,  the 
Legislature  is  forbidden,  generally,  to  create  corporations  ^  or  to 

capital  and  labor.    The  Board  shall  per-  *  lo.  8,   12  ;    Territories.     See  also 

form  duties,  and  receive  compensation  §  16. 

as  prescribed  by  law  (Utah  16,  2).     By  «  Ala.  229;    Ark.  12,  2;    Cal.  12,  1 

statute,    such   boards   exist   in    many  &  7 ;     Col.    15,    2 ;    Del.    9,    1 ;     Fla. 

States.  1S99,  p.  1357;    Ida.  11,  2;  3,  19;    Ind. 

'  Ala.  241;   Cal.  12,  4;    Ida.  11,  16;  11,  13;    111.  11,  1;    lo.  8,  1 ;    Kan.  12, 

Kan.  12,  6 ;   Ky.  208 ;   La.  268 ;   Mich.  1 ;  La.  275 ;  Me.  4,  3 ;  Md.  3,  48 ;   1890, 

15,  11;  Minn.  10,  1;  Miss.  199;  Mo.  12  195;    Mich.   15,  1    &  8;    Minn.  10,  2; 

11;  Mon.  15,  18;  N.  Y.  8,  3 ;  N.  C.  8,  Miss.  178,  179;  Mo.  12,  2;  Mon.  15,  2; 

3;  N.  D.  144;  Okla.  9,  1;   Pa.  16,  13;  Neb.  13,  1;   Nev.  8,  1 ;   N.  J.  4,  7,  11; 

S.  C.  9,  1;    S.  D.  17,  19;    Utah  12,  4;  N.  Y.  8,  1 ;    N.  C.  8,    1;   N.  D.   131; 

Va.  153;    Wash.  12,  5.     In  Delaware  O.   13,    I;    Okla.  9,    38;    Ore.    11,  2; 

(9,  4)  nothing  in  the  Constitution  ap-  R.  L  Amt.  9;   S.  C.  9,  2;   S.  D.  17,  1; 

phes  to  rehgious  corporations,  whose  Tex.  12,  1;   Tenn.  11,  8;    Utah  12,  1; 

rights  remain  unaltered  except  where  Va.  154,  167;    W.  Va.  II,  I;    Wash. 

therein     otherwise     provided.       Okla-  12,  1;    2,28;    Wis.  11,  1;    Wy.  10,  1; 

homa  and  Virginia  except  municipal  Territories  U.   S.    R.    S.    1889;    1886, 

corporations  from  this  article  and  de-  818.      In   Rhode   Island   an  exception 

fine  the  term  charter  and  license  —  the  is  made  of  corporations  created  with 

latter   term,  in  Virginia,   referring  to  the  power  to  exercise  the  right  of  emi- 

foreign  corporations  (§  505).  nent  domain  or  acquire  franchises  in 

-  Wy.  10,  2.  the  streets  and  highways,  which  must 

^  Wy.  1,  30.  be  created  by  special  Act  upon  peti- 

*  N.  H.  2,  82.  tion  and  notice  according  to  law  (§  302). 


816  THE   STATE   CONSTITUTIONS  [nOOK    III 

license  foreign  corporations'  by  special  act.  (See  also  §  395.) 
1  >; I II kiii<^  corporations  may,  however,  in  three  States  still  he  created 
by  special  act.* 

So,  the  Legislature  "shall  provide  by  general  laws"  for  the  crea- 
tion of  municipal,^  educational/  charitable,  religious,  and  literary  * 
corporations,  or  for  manufacturing,"  mechanical,'  industrial,^  min- 
ing,® agricultural,'"  draining,"  "other  useful  companies,"  '-  or  for  the 
creation  of  corporations  generally  '^  (this  last  would  follow  from  the 
principal  provision  above),  or  for  conducting  the  business  of  in- 
surance, banks  of  discount  and  deposits  (but  not  of  issue),  loan, 
trust,  and  guaranty  associations,  railroads,  wagon  roads,  irrigating 
ditches,  the  colonization  and  improvement  of  lands  in  connection 
therewith.'*  Nor  can  the  Legislature  by  special  act  change  or 
amend  any  franchise  or  charter  (save  as  to  corporations  above 
excepted),'^  or  remit  the  forfeiture  of  a  charter  now  existing.'" 

The  Legislature  shall  pass  no  law  for  the  benefit  of  a  railroad  or 
other  corporation  (or  any  individual  or  association  of  individuals) 
retrospective  in  its  operation,  or  which  imposes  on  the  people  of  any 
municipality  a  new  liability  in  respect  to  transactions  or  consider- 
ations already  past.'' 

In  Delaware  a  general  or  special  incorporation  act  must  have  a 

two-thirds  vote  of  all  the  members  elected  in  each  house;  in  Rhode 

Island  it  must  be  continued  to  the  next  Legislature,  and  public 

And  in  other  States  an  exception  is        ^  Del.,  Ind.,  Md. 
made  of  municipal  corporations  (Col.,         ^  Cal.  11,  6. 
Del.,  Ida.,  La.,  Md.,  Me.,  Mich.,  Mon.,         *  Fla.  3,  25;  Territories. 
Minn.,  N.  C,  N.  D.,  Nev.,  N.  Y.,  Ore.,         «  Territories. 
S.  C,  Tex.,  Wis.,  Territories  U.  S.  1878,         «  Territories. 
168)    "which    are    under   the   control         '  Fla. 
of  the  State"  (Col.,  Ida.,  Mon.,  N.  D.) ;         »  Territories, 
of  cases  where  there  is  no  general  act         *  Fla.,  Territories. 
(Me.,   Md.,   N.   C,   N.   Y.,   Wis.);    of       "  Fla. 
educational,  charitable,   penal,  or   re-        "  Territories, 
formatory     corporations     (Ark.,     Col.,        '-  Fla. 

Del.,  Ida.,  111.,  Mo.,  Mon.,  Neb.,  N.  D.,        '^  Ala.,  Miss.,  N.  D.,  S.  C,  S.   D., 
S.  C,  S.  D.) ;    but  such  corporations    Va. 
if  specially  chartered  must,  except  in        '*  Territories. 

Montana,  be  under  State  control.  It  '^  Ala.,  Cal.,  Col.,  Del.,  Ida.,  111., 
will  be  noted  that  in  the  northern  and  La.,  Mich.,  Miss.,  Mo.,  Mon.,  Neb., 
eastern  States  the  whole  matter  of  Nev.,  S.  C,  S.  D.,  Utah,  Va.,  Wash, 
corporations  is  left  to  the  Legislature  And  see  §§  503,  395. 
to  determine  by  law;  while  the  follow-  "^  Ala.;  Cal.;  La.  262;  Miss.;  Mo. 
ing  States  endeavor  to  cover  the  subject  12,3;  Mon.;  N.  D.  13,3;  S.  C.  9,  17; 
substantially  in  their  Constitutions:  S.  D.  17,  3;  Utah;  Wash.  See,  how- 
Del.,  La.,  Ky..  Ida.,  Mon.,  Okla.,  N.  D.,    ever,  §  503. 

S.  C,  S.  D.,  Utah,  Wash.,  Va.,  Wy.  '^  Col.  15,  12;   Ida.  11,  12;   Mo.  12, 

'  Okla.  19 ;  Mon.  15,  13. 


PART   III]  LEGISLATION  317 

notice  given  of  its  pendency.'  No  law  can  create,  renew,  or  expend 
the  charter  of  more  than  one  corporation.^  In  Georgia  the  Legis- 
lature has  no  power  to  create  private  corporations,  but  shall  pre- 
scribe the  manner  in  which  such  powers  shall  be  exercised  by  the 
Secretary  of  State.^  So  in  ^^irginia,  charters  are  granted  by  the 
Corporation  Commission  (see  §  532,  note  6).* 

§  503.  Repeal.  —  And  all  general  ^  or  even  special  ^  laws  for  the 
creation  of  corporations  may  be  altered  or  repealed.  So  (see  also 
§  16),  no  law  shall  be  passed  granting  irrevocably  any  franchise, 
privilege,  or  immunity.^  But  in  Arizona  no  corporation  can  be  dis- 
solved or  its  rights  impaired  except  by  judicial  proceedings.^  In 
others,  the  Legislature  shall  by  general  law  provide  for  the  revo- 
cation or  forfeiture  of  the  charters  of  all  corporations  for  the  abuse, 
misuse,  or  nonuser  of  their  corporate  powers,  privileges,  or  fran- 
chises, any  procedure  for  such  forfeiture,  etc.,  to  be  taken  by  the 
attorney-general.'*  All  privileges  or  franchises,  and  rights  to  collect 
freights,  fares,  tolls,  or  wharfage  are  subject  to  control.^'*  But  they 
are  not  to  be  repealed,  etc.,  so  as  to  impair  or  destroy  vested  cor- 
porate rights,^'  or  work  injustice  to  the  corporators  or  the  corpora- 
tion's creditors.'"  In  Iowa  and  Michigan  such  repeal,  etc.,  must 
have  a  vote  of  two-thirds  present  '^  or  elected"  in  each  house  of  the 
Legislature.  All  corporations  must  organize  and  commence  busi- 
ness within  two  years  of  the  charter,  etc.,  or  it  becomes  void.'^ 

§  504.  Existing  Corporations.  —  Some  newer  State  Constitutions 
specifically  provide  that  no  general  or  special  law,'^  or  no  exemption 

»  Del.  9,  1 ;  R.  I.  4,  17.  S.  D.,  Utah,  Wash.,  Wis.,  Wy.    And  so 

'  S.  D.  17,  9.  doubtless  in  the  others. 
3  Ga.  3,  7,  18;   Amt.  1891,  p.  59.  '  Ala.   22;     Ky.   3;     S.   D.   6,    12; 

*  Va.  156.  Utah  1,  23;    Wash.   1,  8.     For  other 

5  Ala.  229,  238;    Ark.   12,  6;    Cal.  States  see  §  16,  notes  1  &  2. 

11,  6;   12,  1;   Col.  15,  3;    Ga.  1,  3,  3;         »  Ariz.*  B.  Rts.  29. 

12,  1,5;  Ida.  11,2  &3;  12,  1;  lo.  8,  12;         »  Del.  9,  1 ;   Ky.  205;   Va.  154. 
Kan.  12,  1;    Me.  4,  3,  14;    Md.  3,  48        ">  Tex.  1,  17;   12,5.    See  also  §§  416, 
(except  banks) ;    Miss.  88,  178;    Mon.  501,506. 

15,  3;  Mich.  15,  1;   N.  J.  4,  7,  11;   N.  "  Ga.,  Ore.,  Tenn. 

Y.  8,  1  ;   Nev.  8,  1;   Neb.  13,  1;   N.  C.  '-  Ala.,  Ark.,  Col.,  Ga.,  Ida.,  Miss., 

8,  1;    N.  D.  131;    O.  13,  2;    Okla.  9,  Okla.,  Pa.,  S.  D.   (as  to  corporations 

47;    Ore.   112;    Pa.   16,  10;    S.  C.  9,  existing    when    the    Constitution    was 

2;    S.  D.  17,  9;    Tenn.   11,   8;    Utah  adopted).       These     provisions    would 

12,   1 ;    Va.   154 ;    Wash.   12,   1 ;    Wy.  seem  meaningless. 

10,  1 ;  Wis.  11,  1.    See  also  §  394.    But  '^  lo.  8,  12. 

only  by  general  law:   Del.,  Me.,  N.  D.,  '*  Mich.  15,  8. 

S.  C.    Compare  §  502.  '^  Miss.  180. 

«  Ark.,  Del.,  Md.,  Me.,  Miss.,  Mon.,  '«  Ala.  231 ;   Ark.  17,  8;   Ga.  4,  2,  3; 

Nev.,  N.  Y.,  N.  C,  Okla.,  Ore.,  Pa.,  Ida.  11,7;  Ky.  190;  La.  262 ;  Md.  1890, 


318  THE   STATE   CONSTITUTIONS  [BOOK   III 

or  remission  of  forfeiture,'  or  renewal  or  extension,^  or  alteration  or 
amendment  ^  of  a  charter  shall  be  enacted  except  on  condition  that 
any  corporation  availing  itself  of  it  shall  thereafter  hold  its  charter 
subject  to  the  provisions  of  the  Constitution.  So,  no  corporation 
can  do  business  until  it  accepts  the  Constitution.'  The  acceptance  of 
any  amendment  usually  brings  the  corporation  under  the  general 
law,^  These  restrictions  do  not  of  course  apply  to  municipal 
corporations." 

Existing  charters  or  grants  of  special  or  exclusive  privileges  under 
which  a  bona  fide  organization  had  not  taken  place  at  the  time  of  the 
adoption  of  the  Constitution,  or  twelve  months  thereafter,''  are 
declared  void.^  The  property  and  franchises  of  corporations  are 
subject  to  eminent  domain  like  that  of  individuals.* 

§  505.  Foreign  Corporations.  —  Several  States  provide  that  no 
corporation  organized  out  of  the  State  shall  be  allowed  to  transact 
business  within  the  State  which  is  forbidden  to  domestic  corpora- 
tions,'" or,  on  more  favorable  conditions  than  are  prescribed  by  law 
to  similar  corporations  organized  in  the  State."  But  such  companies 
may  be  licensed,  or  taxed,  on  a  different  principle  from  home  corpora- 
tions,'- so  it  be  uniform,  or  other  conditions  may  be  imposed.'^  No 
foreign  corporation  can  condemn  land,'*  or  conduct  the  business  of  a 
public  service  corporation  within  the  State. '^     They  must  usually 

p.  195;  Miss.  179;  N.  D.  133 ;  Okla.  9,  »  Va.    159.      For   other   States  see 

11 ;  Pa.  16,  2  ;  S.  C.  9,  17 ;  S.  D.  17,  3 ;  §  97. 

Utah  12,  2.    This  is  applied  specifically  "  Okla.  9,  44 ;  Va.  163. 

also  to  railroads:  Ala.  246;  Col.  15,  7;  "  Ark.  12,  11;  Cal.  12,  15;   Ida.  11, 

Mo.   12,  21;   Mon.  15,  8;  Tex.  10,  8;  10;    Ky.  202;    Mon.   15,   11;    Okla.; 

Wy.   10,  6;    or  express  or  transports^  Va. ;    Utah  12,  6;    Wash.  12,  7.     No 

tion  companies :   Mon.,  Wy.     Or  tele-  point    of    constitutional   law    is    more 

graph :  Wy.  vexed  than  this.     Does  a  foreign  cor- 

'  Ala.,  La.,  Md.,  Miss.,  N.  D.,  S.  C,  poration  come  into  a  State  with  all 

S.  D.  its  charter  powers,  or  only  such  as  the 

^  Del.  9,  2 ;    La. ;   Mich.  15,  8 ;    Va.  State   law   permits    its    own    corpora- 

158.  tions?     It  is  clear  that  a  State  may 

^  Ala.,  Del.,  La.,  Miss.,  N.  D.,  S.  C,  by  express  statute  exclude  such  cor- 

S.  D.,  Va.  poration  entirely.  Otherwise,  the  better 

*  Wy.  10,  5;   10,  10(6).  opinion  is  that  a  definite  prohibition 

*  Md.,  Miss.,  Okla.,  S.  C.  of  such  powers,  or  a  clear  line  of  poUcy 

*  Ida.,  Mich.  forbidding  such  corporations  of  its 
^  Ala.  230 ;  Miss.  180.  own  creation,  will  also  suffice  so  to 
®  Ark.  12,  1 ;  Col.  15,  1 ;  Ida.  11,1;  limit  or  exclude  foreign  companies. 

111.  11,  2;    Ky.  191;    Mo.  12,  1;    Mon.  ^-^  Ark.  12,  11;   La.  242. 

15,  1 ;    N.  D.  132 ;    Neb.  13,  6 ;    Okla.  '^  Okla.  9,  44 ;  Va. 

9,  46;    Pa.  16,  1;    S.  D.  17,  2;    S.  C.  '*  Ark. 

9,  16;   Utah  12,  2;  Wash.  12,  2;   Wy.  '^  Va. 
10,3;  W.  Va.  11,  3. 


PART   III]  LEGISLATION"  319 

file  a  copy  of  their  charter,  etc.,  with  the  Secretary  of  State,'  or 
other  official.  In  Virginia  no  foreign  corporation  can  do  business 
in  the  State  until  it  has  obtained  a  license  from  the  corporation 
comnrission.'  In  Texas  no  such  corporation  except  a  national  bank 
can  do  banking  or  discounting  business  in  the  State,^ 

§  506.  Business,  Ultra  Vires,  etc.  —  All  corporations  doing 
business  in  a  State  may  as  to  such  business  be  regulated,  limited,  or 
restrained  by  law*  (see  also  §  503);  so,  the  police  power  of  the 
State  shall  never  be  so  abridged  or  construed  as  to  permit  corpora- 
tions to  conduct  their  business  in  such  manner  as  to  infrino-e  the 
equal  rights  of  individuals  or  the  general  well-being  of  the  State.^ 
No  corporation  can  engage  in  any  business  other  than  that  expressly 
authorized  by  its  charter  or  the  law  under  which  it  was  formed :  ® 
and  not  in  more  than  one  line  of  business.^ 

"The  Legislature  shall  provide  for  the  protection  of  the  employees 
of  all  corporations  doing  business  in  the  State  from  interference  with 
their  social,  civil  or  political  rights  by  said  corporations  or  their 
agents  or  employees."  ^ 

§  507.  Office  in  the  State,  Reports,  etc.  —  A  few  State  Constitu- 
tions provide  that  railroads,"  or  all  business  corporations  '°  doing 
business  in  the  State  must  have  an  office  in  the  State  for  the  trans- 
action of  business,  where  transfers  of  stock  may  be  made  and  the 
stock  books  shall  be  kept  open.  They  must  file  a  list  of  officers  and 
stockholders  with  the  Corporation  Commission  showing  addresses 
and  amount  of  stock  held  by  each." 

And  foreign  corporations  in  particular  must  have  an  author- 
ized office  and  agent  in  the  State  upon  whom  process  may  be 
served.'^ 

Failure  to  pay  franchise  taxes  or  make  reports  for  two  successive 

»  Ala.  232 ;   Utah  12,  9.    See  §  507.  '  Wy. 

2  Va.  157.  «  Miss.  191. 

3  Tex.  190.3,  p.  249.  »  Ark.  17,  2;     111.  11,  9;    La.  273; 
*  Utah,   12,   1;  Wash.   12,  1;  Wy.  Mo.  12,  15;     Neb.  11,  1;    N.  D.  140; 

10,  1.  Pa.  17,  2  ;   S.  D.  17,  12 ;  Tex.  10,  3. 

'  CaL  12,8;  Col.   15,  8;  Ga.  4,  2,  "  Cal.  12,  14;    Ky.  194;    La.  264; 

2;    Ida.    11,  8;    Ky.    195;    La.    263;  Mon.  15,  11;    S.  C.  9,  4 ;    Utah  12,  9. 

Miss.  190;  Mo.   12,  5;  Mon.    15,  9;  N.  (£^xcepf  mercantile  corporations:  S.  C.) 

D.  134 ;    Pa.   16,  3 ;  S.  D.   17,  4 ;  Va.  And  so  of  canals  (Ark.  Pa.) ;  turnpikes 

159.  (Ark.) ;  banks  (Kan.  13,  6.) 

«  Ala.  233 ;   Cal.    12,  9 ;  Ky.   192 ;  '^  Okla.  9,  43. 

La.  265;  Mo.    12,  7;  N.  D.  137;  Pa.  '-  Ark.  12,  11;  Ala.  232;  Col.  15,10; 

16,  6;  S.  C.  9.  12;  S.  D.  17,  7;  Utah,  Del  9,  5;  Ida.  11,  10;  111.;  Ky. ;  La.; 

12,  10;  Wy.  10,  6.     This  is  but  the  Mon.;  N.  D.  136;  Okla.;  S.  C. ;  S.  D. 

common  law.  17,  6;  Utah. 


320  THE   STATE   CONSTITUTIONS  [BOOK   III 

years  operates  a  revocation  or  annulment  of  its  cliarter,  or,  if  a 
foreign  corporation,  its  license   (§  50')).' 

§  508.  Suits.  —  All  corporations  may  sue  and  be  sued  in  the 
courts  like  natural  persons."  Suits  may  be  brought  against  a  foreign 
corporation  in  any  county  where  it  does  business,^  and  service  be 
made  on  an  agent  anywhere  within  the  State.'  Every  license  or 
charter  granted  to  a  mining  or  pul)lic  service  corporation,  foreign  or 
domestic,  shall  stipulate  that  it  will  submit  any  difference  with  its 
employees  to  arbitration  as  shall  be  provided  by  law.'' 

§  509.  Liabilities  of  Stockholders.  —  (For  banks,  see  §  555.) 
The  Constitutions  of  several  States  provide  that  stockholders  shall 
in  no  case  be  liable  otherwise  than  for  unpaid  stock  ow'ned  by  them ; " 
so,  each  stockholder  is  liable  for  the  amount  of  stock  held  or  owned 
by  him.^  In  Nevada  no  stockholder  is  individually  liable  for  the 
debts  of  the  corporation.^ 

But  in  a  few  he  is  liable  over  and  above  his  stock  to  a  further  sum 
equal  in  amount  to  such  stock ;  ^  in  California,  for  his  aliquot  share 
for  all  the  debts  and  liabilities  of  the  corporation ; '"  and  in  Michigan 
he  is  individually  liable  for  all  labor  performed  for  the  corporation  or 
association." 

In  others,  dues  from  corporations  or  their  stockholders  are  to  be 
secured  in  a  manner  provided  by  law.'" 

Trust  Funds.  —  No  act  of  the  Legislative  Assembly  shall  authorize 
the  investment  of  trust  funds  by  executors,  administrators,  guardians, 
or  trustees  in  the  bonds  or  stock  of  any  private  corporation.'^ 

§  510.  Voting.  —  Stockholders  have  one  vote  for  each  share, 
for  each  person  to  be  elected,  by  person  or  by  proxy,"  and  may  cumu- 
late their  votes  on  one  candidate  or  distribute  them  as  they  see 

»  Va.  157.  «  Nev.  8,  3. 

2  Ala.  240;  Cal.  12,  4;  Kan.  12,  6,  »  Kan.  Amt.  1905,  542;  Utah  12, 
Mich.  15,  11;  Minn.  10,  1;  Mon.  15,  18;  Wash.  12,  11  (of  banks,  insurance, 
18 ;  Neb.  13,  3 ;  Nev.  8,  5 ;  N.  Y.  8,  3  ;  and  joint  stock  companies) ;  S.  C.  9, 
N.  C.  8,  3;    Utah  12,  4;    Wash.  12,  5.  18  (of  banks).     Except  in  railway  cor- 

3  Ala.  232 ;  Cal.  12,  16.  porations  (Kan.). 
*  Ala.,  Okla.     Or  in  the  county  of       '"  Cal.  12,  3. 

the  plaintiff's  residence  or  where  the  "  Mich.  15,  7. 

cause  of  action  arose  (Okla.).  ^^  Ala.;    Cal.    12,   2;     Ida.    11,    17; 

^  Okla.  9,  42.     A  striking  clause.  Ind.  11,  14;   Kan.;   Mon.  15,  19;   Mo.; 

«  Ala.  236;   Ida.    11,    17;  O.    Amt.  Nev.;   N.  C.  8,  2;   Tex.  12,  2. 

1902,  p.  961 ;  S.  C.  9,  18 ;  Wash.  12,  4.  "  Ala.  74 ;  Mon.  5,  37 ;  Wy.  3,  38. 

Except    banking,    or    insurance    com-  "  Cal.;    Ida.  11,  4;    111.  11,  3;    Ky. 

panies  (Wash.).  207;    Miss.  194;    Mon.  15,  4;    Mo.  12, 

'  Minn.  10,  3  (except  in  mechanical  6;  N.  D.  135;  Neb.  13,  5;   S.  C.  9,  11; 

or  manufacturing  companies).  S.  D.  17,  5;    W.  Va.  11,  4. 


PART    III] 


LEGISLATION 


321 


fit.*  But  no  person  engaged  or  interested  in  a  competing  business, 
either  as  director,  stockholder,  or  individually,  may  so  be  elected 
without  a  majority  stock  vote." 

§  511.  Directors  are  liable  jointly  and  severally  to  creditors  and 
stockholders  for  moneys  embezzled  or  misappropriated  by  officers 
of  the  corporation  during  their  term  of  office.^ 

§  512.  Issue  of  Stock. — The  usual  constitutional  provision  is 
that  no  corporation  may  issue  stock  or  bonds  except  for  money, 
labor  done,  or  money  or  property  actually  received ;  *  and  all  fictitious 
increase  of  stock  or  indebtedness  shall  be  void.^  In  a  few  States 
stock  can  only  be  issued  to  actual  subscribers  therefor.*'  Whenever 
any  issue  of  stock  or  bands  is  made  the  corporation  must  file  a 
detailed  statement  of  the  plans,  payments,  etc.,  of  such  issue  with 
the  Corporation  Commission.^ 

§  513.  Increases  of  Stock  may  only  be  made  under  general  laws 
with  the  consent  of  a  majority  of  the  stock,^  given  at  a  special  meet- 
ing after  due  notice  "  (usually  thirty  '"  or  sixty  "  days). 

And  the  same  law  applies  in  a  few  State  Constitutions  to  an 
increase  of  bonded  indebtedness.'' 


1  Cal. ;  Ida. ;  111. ;  Ky. ;  Miss. ;  Mon. ; 
Mo.;  N.D. ;  Neb.;  Pa.  16,  4;  S.  C. ; 
S.  D. ;  W.  Va. 

2  Miss. 

8  Cal.  12,  3. 

*  Ala.  234;  Ark.  12,  8;  Cal.  12,  11; 
Col.  15,  9;  Del.  9,  3;  1901,1;  Ida.  11, 
9;  Ky.  193;  La.  266;  Mo.  12,  8; 
Mon.  15,  10 ;  N.  D.  138 ;  Okla.  9,  39 ; 
Pa.  16,  7;  S.  D.  17,  8;  Tex.  12,  6; 
Utah  12,  5.  So  in  others,  of  railroads 
only:  111.  11,  13;  Neb.  11,  5;  S.  C. 
9,  10;  Miss.  196;  Wash.  12,  6;  or 
"  transportation  companies  "  (Miss.). 
Such  money  or  property  must  further 
be  applied  to  the  purposes  for  which 
the  corporation  was  created,  and  not 
be  received  at  greater  value  than  the 
market  price  (Ky.). 

'  Ark.,  Ala.,  Cal.,  Col.,  Ida.,  111., 
Ky.,  La.,  Miss.,  Mo.,  Mon.,  Neb.,  N. 
D.,  Okla.,  Pa.,  S.  C,  S.  D.,  Tex., 
Utah,  Wash.  And  the  corporation 
issuing  it  forfeits  its  charter  (La.). 

«  Utah,  Wash. 

^  "The  Legislature  shall  enact  gen- 
eral laws  regulating  and  controlling  all 
issues  of  stock  and  bonds  by  corpora- 


tions. Whenever  stock  or  bonds  are 
to  be  issued  by  a  corporation,  it  must 
file  with  the  State  Corporation  Com- 
mission a  sworn  statement  setting  forth 
fully  and  accurately  the  basis,  or  finan- 
cial plan  upon  which  such  stock  or 
bonds  are  to  be  issued ;  and  where  such 
plan  includes  services  or  property 
(other  than  money),  received  or  to  be 
received,  it  must  accurately  specify  and 
describe,  in  the  manner  prescribed  by 
the  Commission,  the  services  and  prop- 
erty, together  with  the  valuation  at 
which  the  same  are  to  be  received  " 
(Va.  167). 

»  Ala.  234;  Ark.  12,  8;  Cal.  12,  11; 
Col  15,  9;  Ida.  11,  10;  La.  267; 
Mon.;  Mo.  12,  8;  Okla.  9,  38;  Pa. 
16,7;  S.  D.  17,  8;  Utah;  Wash.;  Va. 
167.  In  others  the  restriction  only  ap- 
plies to  railroads  (111.  11,  13;  Neb. 
11,  5). 

«  Okla.,  Utah,  Wash. 

•"  Ala.,  Col.,  La. 

»  Ark.,  Cal.,  Ida.,  111.,  Mo.,  Mon., 
Neb.,  N.  D.,  Pa.,  S.  D. 

12  Ala.,  N.  D.,  Okla.,  S.  D. 


21 


322  THE   STATE   CONSTITUTIONS  [BOOK   III 

§  514.  Preferred  i<focIc  cannot  he  issucil  without  the  consent  of 
two  thirds/  or  even  iill,^  of  the  stockholders. 

§  515.  Time.  —  A  few  State  Constitutions  hmit  the  duration  of 
corporations  to  tliirty,^  or  ninety-nine  *  years. 

§  51G.  Real  Estate  may  be  held  hy  any  corporation,  usually  such 
as  it  actually  occupies  in  the  exercise  of  its  franchises,^  or  as  is 
necessary  and  proper  for  the  carrying  on  of  its  legitimate  business." 
Otherwise  no  corporation  may  hold  land  for  more  than  a  limited 
period  of  time.^  The  Mississippi  Constitution  simply  provides  that 
the  Legislature  may  limit  or  restrict  the  acquiring  or  holding  of  land 
by  corporations.^ 

§  517.  Assignment  of  Franchise.  — "Western  States  provide  that 
the  Legislature  shall  pass  no  law  permitting  the  leasing  or  alienation 
of  any  franchise  so  as  to  relieve  it  or  the  property  held  thereunder 
from  the  liabilities  of  the  lessor  or  grantor,  lessee  or  grantee,  con- 
tracted or  incurred  in  the  operation  and  use  of  such  franchise  or  any 
of  its  privileges.® 

§  518.  Consolidation,  Combination,  etc.  (see  also  Article  58).  — 
In  Georgia  the  strict  principle  is  laid  down  that  the  Legislature  may 
not  authorize  any  corporation  to  buy  shares  or  stock  in  any  other 
corporation  in  the  States  or  elsewhere,  or  to  make  any  contract  or 
agreement  with  such  corporation  with  the  effect  or  purpose  of 
lessening  competition  or  encouraging  monopoly,  and  all  such  con- 
tracts etc.,  are  void."  In  Oklahoma,  it  may  not  o\\ti  stock  in  any 
corporation  engaged  in  the  same  line  of  business,  or  competitive, 
unless  pledged,  etc.,  and  then  it  may  not  be  voted  and  must  be  sold 
within  a  year." 

So,  no  incorporated  company,  or  any  association  of  persons  or 
stock  company  in  the  State  shall  directly  or  indirectly  combine  or 
make  any  contract  with  any  other  incorporated  company,  foreign 
or  domestic,  through  their  stockholders  or  the  trustees  or  assignees 
of  such  stockholders,  or  in  any  manner  whatsoever  for  the  purpose  of 
fixing  the  price  or  regulating  the  production  of  any  article  of  com- 
merce or  of  produce  of  the  soil,  or  of  consumption  by  the  people, 

»  Ala.  237.  '  Thus,  five  years  (Cal.,  Ky.),  six 

^  Mo.  12,  10.  years  (Mo.),  or  ten  years  (La.,  Mich.). 

^  Mich.    15,    10    (except  railroads,         *  Miss.  84. 

plankroads,  and  canals).  »  Cal.  12,  10;   Ida.  11,  15;  Ky.  203; 

*  Miss.  178.  Hon.  15,  17;  Utah  12,  7;  Wash.  12,  8. 

«  Mich.  15,  12.  "  Ga.  4,  2,  4. 

«  Cal.   12,  9 ;    Ky.   192 ;  La.  265 ;       "  Okla.  9,  41. 
Mo.  12,  7;   S.  D.  17,  7. 


PAKT    III]  LEGISLATION  323 

and  the  Legislature  are  required  to  pass  laws  for  the  enforcement 
thereof,  by  adequate  penalties,  to  the  extent,  if  necessary  for  that 
purpose,  of  the  forfeiture  of  their  property  and  franchise,'  and,  if 
foreign  corporations,  prohibiting  them  from  carrying  on  business 
in  the  State.^     (See  §  581.) 

"No  corporation,  company,  person,  or  association  of  persons  in 
the  State  shall  directly  combine  or  form  what  is  known  as  a  trust."  ^ 

"^Monopolies  and  trusts  shall  never  be  allowed  in  this  State."'* 
So,  "the  Legislature  shall  enact  laws  preventing"  such  combina- 
tions, etc'     (See  §  581.) 

"There  shall  be  no  consolidation  or  combination  of  corporations 
of  any  kinds  whatever  to  prevent  competition,  to  control  or  influence 
productions  or  prices  thereof,  or  in  any  manner  to  interfere  with  the 
public  good  and  general  welfare."  ® 

"No  person,  corporation,  etc.,  engaged  in  the  production,  manu- 
facture, distribution,  or  sale  of  any  commodity  in  general  use  shall 
for  the  purpose  of  creating  a  monopoly  or  destroying  competition 
discriminate  between  different  persons  or  corporations,  or  different 
sections,  communities,  or  cities,  by  selling  at  a  lower  rate  in  one 
than  in  another,  allowance  made  for  the  difference  if  any  in  the 
grade,  quantity,  or  quality,  and  in  the  actual  cost  of  transportation 
from  the  point  of  production  or  manufacture."'' 

§  519.  Taxation  of  Corporations. —  (See  §  330.)  By  the  Vir- 
ginia Constitution,^  provision  shall  be  made  by  general  laws  for  the 
payment  of  a  fee  by  every  domestic  corporation,  upon  the  granting, 
amendment,  or  extension  of  its  charter,  and  by  every  foreign  cor- 
poration upon  obtaining  a  license  to  do  business;  and  also  for  an 
annual  registration  fee  of  from  $5  to  $25,  irrespective  of  other  taxes, 
upon  every  corporation  for  the  privilege  of  carrying  on  its  business 
in  the  State  (and  this  seems  to  apply  to  foreign  corporations  as  well), 
and  upon  failure  to  pay  the  tax  for  two  years  the  license  to  do  busi- 
ness is  revoked  or  the  charter  annulled. 

"The  Legislature  shall,  by  general  law,  provide  for  the  payment 
to  the  State  of  a  franchise  tax  by  corporations  organized  under  the 

•  Ida.  11,  18;  Mon.  15,20;  S.  D.  '  Ala.  103;  Ky.  198;  La.  190; 
17,20;  Wash.  12,  22.  Or  "regulating  Miss.  198;  N.  H.  2,  82;  Okla.  5,  44; 
the     transportation    thereof"    (Mon.,   S.  C.  9,  13:    Va.  1G5.    See  Art.  58. 

S.  D.,  Wash.).  6  Wy.  10,  8. 

'  Mon.  7  Okla.  9,  45. 

3  Mon.  8  Va.  157. 

*  S.  D.,  Wash. 


324  THE   STATE   CONSTITUTIONS  [BOOK   III 

laws  of  this  State,  wliicli  sliall  Ix-  in  ])r()portion  to  tlie  amount  of 
capital  stock;  and  lor  the  payment  of  a  franchise  tax  by  foreign  cor- 
porations, but  such  franchise  tax  sliall  be  based  on  the  actual  ainoimt 
of  capital  employed  by  this  State.  Strictly  benevolent,  educational 
or  religious  corporations  shall  not  be  required  to  pay  such  a  tax.^ 
In  other  States  corporations  are  taxed  on  their  property  in  like  man- 
ner as  individuals.^ 

"The  word  property  as  used  in  this  article  is  hereby  declared  to 
include  moneys,  credits,  bonds,  stocks,  franchises,  and  all  matters 
and  things  (real,  personal,  and  mixed),  capable  of  private  owner- 
ship, but  this  sliall  not  be  construed  so  as  to  authorize  the  taxation 
of  the  stocks  of  any  company  or  corporation  when  the  property  of 
such  company  or  corporation  represented  by  such  stocks  is  within 
the  State  and  has  been  taxed."  ^     (See  §  331.) 

Shares  of  stock  of  Delaware  corporations  "owned  by  persons  or 
corporations  without  the  State  shall  not  be  subject  to  taxation  by 
any  law  now  existing  or  hereafter  to  be  made."  ^ 

Article  52.     Railroads 
(See,  for  General  Provisions,  Article  50.) 

§  520.  Highways.  —  The  Constitutions  of  many  States  declare 
all  railroads  to  be  public  highways ;  ^  and  so,  in  a  few,  canals  ^  or 
turnpikes;  ^  and  "free  to  all  persons  for  the  transportation  of  their 
persons  or  property  thereon  under  the  regulations  prescribed  by  law."^ 

§  521.  Carriers.  — -  And  these  State  Constitutions  usually,  with 
others,  declare  railroads  to  be  common  carriers,"  and  so  also  of 
canal,'"  pipe  line,"  express,'-  telegraph  and  telephone,'^  or  other 
transportation  companies,"  or  sleeping  cars.'^ 

1  Ala.  232.  'Ala.;    Ark.   17,    1;    Cal.    12,  17; 

2  Miss.  181;  Fla.  16,  16.  See  also  Col.  15,4;  Ida.  11,5;  La.;  Miss.  184, 
§  330.  195 ;    Mo. ;    Mon. ;    N.   D.   142 ;    Pa. ; 

3  Mon.  12,  17;  Utah  13,  2.  S.  C.  9,  3;   S.  D. ;  Tex.;   Utah  12,  12; 
^  Del.  9,  6.                                               Wash.  12,  13,  and  19;  Wy.  10,  7. 


s  Ala.  242 ;  Ark.  17,  1 ;  Col.  15,  4 
111.  11,  12;  Ida.  11,  15;  La.  272 
Miss.  184;  Mo.  12,  14;  Mon.  15,  5 
Neb.  11,  4;  N.  D.  142;  Okla.  9,  6 
Pa.  17,  1 ;  S.  D.  17,  15 ;  Tex.  10,  2 ;  W 


Ala.,  Ark.,  Cal.,  Ida.,  Mon.,  Pa. 
S.  C,  Wash. 

"  Okla.,  Wy. 

'-  Ala.,  Ida.,  Mon.,  Miss.,  N.  D. 
S.  C,  Wy. 


Va.  11,  9;  Wy.  10,  10  (2).  '»  Ala. ;     Ky.    199;     Miss.;     Mon.: 

6  Ala.,  Ark.,  Pa.  S.  C. ;   Wash. ;   Wy. 

'  Ark.  '*  Ala.,  Cal.,  Ida.,  Miss.,  Mon.,  N.  D. 

«  Ark.  17,  3;  Col.  15,  6;  111.;  Neb.;    S.  C,  S.  D.,  Utah,  Wash.,  Wy. 

W.  Va.  "  Ida.,  Miss. 


PART    III]  LEGISLATION  325 

And  as  such  they  are  subject  to  legislative  control,'  taxation,"  and 
liability,^  which  last  can  never  be  limited  by  law,  nor  shall  a  carrier 
be  permitted  to  contract  himself  out  of  it.* 

In  Oklahoma  and  Virginia  this  applies  to  all  public  service  cor- 
porations; and  the  terms  "transmission"  and  "transportation" 
company  are  defined. 

§  522.  Legislative  Control.  —  The  newer  State  Constitutions 
give  the  legislature  express  power  to  make  laws  establishing  reason- 
able maximum  rates  of  fare  and  freight,^  or  generally  to  control 
or  regulate  the  rates  within  the  State.^  In  other  States,  to  correct 
abuses  and  prevent  unjust  discrimination  or  extortion.^  This  power 
may  never  be  surrendered  nor  abridged.'^  In  a  few,  this  power  is 
or  may  be  given  to  the  railroad  ^  or  corporation  commission.^"  And 
it  extends  also  to  transportation,"  steamboat,'-  express,'^  or  "  trans- 
mission" (telegraph  and  telephone)  companies,'*  canals,'"  or  pipe 
lines. '^  But  always  with  appeal  to  the  courts;  '^  and  the  rate  fixed 
stands,  pending  appeal.'^  In  Oklahoma  the  Constitution  requires 
a  two-cent  rate  for  passengers,  unless  the  corporation  commission 
exempt  a  railroad  because  unable  at  that  rate  to  earn  a  "just 
compensation."  '* 

In  California,  a  railroad,  having  once  lowered  its  rates  to  com- 
pete with  another  carrier,  cannot  put  them  up  again  without  the 
consent  of  the  railroad  commissioners.^" 

§  52.3.     Short-Haul  Clause.  —  By  a  few  State  Constitutions  no 

railroad   may  charge,  for  freight  or  passengers,  a  greater   amount 

for  a  less  distance  than  a  greater,  in  the  same  direction,^'  of  which 

'  Cal. ;  Ida.;  Ky. ;  Miss.  186;  Mon. ;         «  Cal.  12,  22;   Ky.  209;  Tex.  1889, 

N.  D.;  S.  D.;  Utah;  Va.  1G4;  Wash.  p.  171.     See  §  532. 

2  S.  C.  '0  Neb.  1905,  233;  Okla.  9,  4 ;  S.  C, 

*  S.  C.  9,  13 ;  Va.  (subject  to  the  paramount 

*  Ky.  196 ;  Neb. ;  S.  C.  authority  of  the  Legislature). 
^  Ala.  243;  lU.  11,  12;  Ida.   11,  5;        '"■  Ida.,  IVIiss. 

Mich.  19  A,  1;  Mo.  12,  14;  Neb.  11,  4;  ^-  Ky. 

Tex.  10,  2;    Wash.  12,  18;    Utah  12,  ^^  Ida.,  Miss. 

15;  W.  Va.  11,  9;   Va.  158.  "  Okla.,  Va. 

»  Mon.  15,  5;   N.  D.  142;   S.  D.  17,  '^  Ala.,  Ark. 

15 ;  Va.  164 ;  S.  C.  9,  13.  '«  Okla.     So,  all  public  service  com- 

^  Ark.  17,  10,  1897,  p.  92;  Ala.  243;    panics:  Fla.,  Okla.,  Va. 

Fla.  16,  30;    111.  11,  15;   Ky.  196;   Ga.  ''  N.  D.,  Okla.,  Va. 

4,  2,  1;    Miss.  186;    Mo.  12,  14;   Neb.  >«  N.  D.,  Okla.,  Va.     See  §  532. 
11,    7;     N.    D. ;    Tex.    10,   2;     Utah;  i»  Okla.  9,  37. 

Wash.;    W.  Va.   11,   9;    S.  C.    9,   13;        '"  Cal.  12,20. 

5.  D.   17,   17.  21  Ark.  17,  3;    Cal.  12,  21;    Ida.  11, 
8  Va.     It  may  be  enforced  if  neces-    6;   Ky.  218;  Mo.  12,   12;  Mon.  15,  7; 

sary    by    forfeiture    of    the    franchise    Okla.  9,   30;   Pa.    17,  3;    S.   C.  9,  5; 
(S.  C).  Wash.  12,  15;  Va.  160. 


326  THE   STATE   CONSTITUTIONS  [BOOK   III 

the  lesser  is  part;  and  as  to  freight,  etc.,  of  the  same  class.*  But 
the  railroad  commission  may  make  order  exempting  from  this 
condition,-  as  at  competitive  points,^  etc.  In  Oklalioma  and 
Virginia  this  principle  a})plies  to  both  transportation  or  "transmis- 
sion "  companies. 

§  524.  Discrimination.  —  Besides  the  general  prohil)ition  of 
§  522,  we  find  a  usual  constitutional  provision  that  no  (undue  or 
unreasonable  *)  discrimination  in  charges  or  facilities  for  trans- 
portation shall  be  made  by  any  railroad  '^  between  places  or  persons, 
or  in  the  facilities  for  the  transportation  of  the  same  classes  of  freight 
or  passengers,"  or  by  abatement,  drawback,  rebate,''  etc. 

All  individuals,  associations,  and  corporations  similarly  situated, 
shall  have  equal  rights  to  have  persons  or  property  transported  on 
and  over  any  railroad,  transportation,  or  express  route  in  this  State  ^ 
(except  that  preference  may  be  given  to  perishable  property "),  and 
to  employees  and  ministers.'" 

No  railroad,  express,  or  transportation  company,  nor  any  lessee, 
manager,  or  other  employee  thereof,  shall  give  any  preference  to 
any  individual,  association,  or  corporation,  in  furnishing  cars  or 
motive  power,"  or  for  the  transportation  of  money  or  other  express 
matter.'- 

All  railway  lines  shall  receive,  load,  unload,  transport,  haul,  de- 
liver, and  handle  freight  of  the  same  class  for  all  persons,  associa- 
tions, or  corporations  from  and  to  the  same  points  and  upon  the  same 
conditions,  in  the  same  manner  and  for  the  same  charges,  and  for 
the  same  method  of  payment.'^ 

No    railway,    transfer,    belt   line,   or    railway   bridge   company 

*  Expressed  in  a  few,  but  doubtless        *  Ark.;   Cal. ;   Col.;    Ida.  11,  6. 
implied  in  all.    "This  section  shall  not        ^  Or  transportation  (Ida. ;   La.  286; 
prevent  the  Railroad  Commission  from  Mon.  15,  7;   S.  C.  9,  5;  Wash.  12,  15; 
making  such  competitive  rates  as  shall,  canal  (Pa.) ;  express  (Ida.,  Mon.)  ;  turn- 
in  their  judgment,  be  just  and  equita-  pike  (Ark.) ;  or  transmission  (telegraph, 
ble  between  the  railroads  and  the  pub-  etc.)  company  (S.  C. ;   Va.). 
lie,  at  all  junctional  and  competitive         "^  Ark.;  Cal.  12,21;  Col.;  Ida.;  La.; 
points  or  at  points  where  water  com-  Mon. ;   Pa.  17,  3 ;   S.  C. ;   Wash, 
petition  controls  the  traffic,  or  at  points        ''  Ala.  245;  Cal.;  Ida.;  Mon.;  Pa.; 
where  the  competition  of  points  located  S.  C. ;   Wash. 
in  other  States  may  make  necessary         *  Ida.  11,6;  Mon.  15,7. 
the   prescribing   of  different   rates   for         ®  Ida. 
the  protection  of  the  commerce  of  this       "  Wy.  10,  2. 

State.':    (S.  C.)     So,  substantially,  in       '^  Ark.    17,   6;    Col.    15,   6;     Ida.; 

Oklahoma.  Mo.  12,  23  ;  Mon. ;   Pa.  17,  7. 

2  Okla.,  Ky.,  S.  C,  Va.  '-  Ida.,  Mon. 

3  Okla.,  Va.  "  Ky.  215. 


PAET    III]  LEGISLATION  327 

shall  make  any  exclusive  or  preferential  contract  or  arrangement 
with  any  individual,  association,  or  corporation  for  the  receipt, 
/  transfer, .  delivery,  transportation,  handling,  care,  or  custody  of 
any  freight,  or  for  the  conduct  of  any  business  as  a  common 
carrier.^ 

The  Legislature  shall  pass  laws  against  abuses,  discrimination, 
and  excessive  charges  by  railroads,  canals,  and  turnpike  companies 
for  freight  or  passengers.^ 

"No  rebate  or  bonus  shall  be  paid,  directly  or  indirectly,  or  any 
act  done  which  shall  mislead  the  public  as  to  the  real  rates  charged 
or  received  for  freight  or  passage."^       (See  also  §  435.) 

Common  carrier  corporations,  enjoying  a  right  of  way,  shall 
carry  the  productions  of  the  country  on  equal  terms.* 

§  525.  Passes,  Commutations,  etc.  —  But  excursion  or  commu- 
tation tickets  may  be  issued  at  reduced  rates  ^  and  charitable  service 
rendered  free  of  cost.® 

Free  passes,  or  reduced  rates,  to  State  officials  or  members  of  the 
Legislature  are  in  a  few  States  forbidden  by  the  Constitution ; ' 
and  so  to  anybody,  except  officers  or  employees,^  or  ministers.^ 
Acceptance  of  such   a  pass  causes  forfeiture  of  the  office.'" 

§  526.  Connections.  —  Li  many  States  railroad  companies  are 
given  a  constitutional  right  to  connect  with  or  cross  any  other;  "  to 
construct  and  operate  its  railroad   between  any  designated  points 

»  Ky.  214.     So  in  Washington  (12,  «  La.,  Okla. 

21):     "Railroad    companies    now    or  ^  Ala.  244;  Ark.  17,  7;   Cal.  12,  19; 

hereafter  organized  or  doing  business  Mo.     12,     24;    Ky.     197;     La.     191; 

in  this  State,  shall  allow  all  express  Fla.   16,   31;    Miss.    188;   Okla.    9,    2; 

companies  organized  or  doing  business  Wash.  2,  39;  12,  20;  N.  Y.  13,  5;  Va. 

in  tliis  State,  transportation  over  all  161.    And  so  as  to  steamboats   (La., 

lines  of  railroad  owned  or  operated  by  Ky.) ;    telegraph    or    telephone    (La., 

such  railroad    companies    upon    equal  N.    Y.',    Va.) ;    or  any  public    service 

terms  with   any  other    express    com-  corporation  or  common   carrier   (Ky., 

pany,  and  no  railroad  corporation  or-  La.). 

ganized    or    doing    business    in    this  *  Okla.  9,  13 ;  Pa.  17,  8 ;  La.  287. 

State  shall  allow  any  express  corpora-  '  La.,  Okla. 

tion  or  company  any  facihties,  privi-  '"  Ala.,  Cal.,   Ky.,  La.,  Mo.,  N.  Y., 

leges,  or  rates  for  transportation  of  men  Va. ;  Wis.    1901,  437.     It    is  made    a 

or   materials    or   property  carried    by  crime  (Okla.). 

them,  or  for  doing  the  business  of  such  ''  Ala.  242  ;   Ark.  17,  1 ;  Cal.  12,  17; 

express  companies,  not  allowed  to  all  Col.  15,  4;    Ida.  11,  5;    Ky.  216;    La. 

express  companies."  271;   Miss.  184;  Mo.  12,  13;   Mon.  15, 

2  Ark.  1897,  p.  92 ;  Ky.  196 ;  Utah  5 ;   N.  D.  143 ;  Okla.  9,  2  ;  Pa.  16,  12 ; 

12,  15;  Wash.  12,  18.     Compare  §  522.  S.  C.  9,  6;  S.  D.  17,  16;  Tex.  10,  1 ;  Va. 

'  Ga.  4,  2,  5.  166;    Wash.    12,  13;    Wy.  10,  10  (1). 

*  Minn.  10,  4.  "In  such  a  manner  as  to  transfer  cars" 

^Ark. ;   Cal.;    Ida.;   La.  287 ;   Mo.;  (Ky.,  Wash.). 
Mon. ;   Okla.  9,  30 ;  Pa. ;  S.  C. ;  Wash. 


328  THE   STATE   CONSTITUTIONS  [BOOK   III 

within  the  State'  and  to  connect  with  railroads  of  other  States  at 
the  State  Hnc.' 

And  in  several  States  this  principle  is  extended  to  telegraph  or 
telephone  ^  companies  and  canals.''  Any  such  company  must  receive 
and  transport  the  passengers  and  freight  °  (or  even  the  cars,  loaded 
or  empty"),  of  such  other  company  without  delay  or  discrimination. 

A  railway  must  deliver  grain  at  any  elevator  or  warehouse  which 
can  be  reached  by  its  tracks  and  allow  other  warehouses  or  coal- 
banks  to  make  connection.' 

§  527.  Consolidations  and  Combinations.  —  Most  State  Consti- 
tutions provide  that  no  railroad  may  consolidate  with  a  competing 
or  parallel  line,^  or  acquire  it  by  purchase,  lease,  or  otherwise,"  or 
own  or  control  its  stock,'"  or  pool  its  earnings  with  it,"  or  operate 
it;  '^   nor  may  the  officers  of  one  act  as  the  officers  of  the  otlier.'^ 

In  two  States  no  railroad  may  consolidate  with  another  organ- 
ized in  another  State."  In  other  States  it  may  do  so,  but  will  still 
be  liable  to  the  home  jurisdiction.'^ 

Nor  shall  any  railroad  company  or  other  common  carrier  com- 
bine or  make  any  contract  with  the  owners  of  any  vessel  that  leaves 
or  makes  port  in  this  State,  or  with  any  common  carrier,  by  which 
combination  or  contract  the  earnings  of  one  doing  the  carrying  are 
to  be  shared  by  the  other  not  doing  the  carrying.'" 

Notice  of  a  proposed  consolidation  must  be  given  to  all  the  stock- 
holders of  both  roads, '^  usually  sixty  days.'^      An  attempt  to  evade 

'  Ida.,   Miss.,   Mon.,   N.  D.,    Okla.,  transportation  (Mon.,  S.  C.) ;  or  "any 

S.  D.,  Wash.,  Wy.  other  corporation"  (Mon.).    Any  public 

'  Ida.,  Miss.,  Mon.,  N.    D.,    Okla.,  service  company  (Okla.).     And  it  ap- 

S.  D.,  S.  C,  Wash.,  Wy.  plies    also    to    corporations    of    other 

'  Ala.,  Col.,  Pa.,  Okla.,  S.  C.  States,  or  of  the  United  States,  having 

*  Ala.  lines  in  the  State  (Okla.). 

«  Ark.;  Ala.;  Cal. ;   Ky.  213;  La.;  »  Ark.,  Mo.,  Okla.,  Pa.,  S.  C,  Tex., 

Mich.    19  A,    1 ;    Miss. ;    Mo. ;   N.   D. ;  W.  Va. 

Okla.;  Pa.;  S.  C. ;  S.  D. ;  Tex.;  Utah  '»  Okla.,  S.  C.  9,  19. 

12,  12  ;  Va. ;   Wash. ;   Wy.  ''  Ky.,  Mon. 

"  Okla.,  S.  C,  Va.  '^  i^y^  ^gn. 

'  111.  13,  5.  "  Ark.,  Mo.,  Mon.,  Okla.,  Pa.,  Tex. 

«  Ark.  17,  4;  Col.  15,  5  and  13;   111.  '*  Okla.  9,  9;  Tex.  10,  6;  S.  C.  9,  8. 

11,  11;  Ky.  201;  Mich.  19  A,  2 ;  Mo.  >=  Col.  15,  14;  Ida.  11,  14;  Ky.  200; 
12,17;  Mon.  15,  6  &  7  &  14;  Neb.  11,  La.  274;  Mo.  12,  18;  Mon.  15,  11. 
3;  N.  D.  141;  Okla.  9,  8;  Pa.  16,  12;  And  so  of  telegraph  (Col.,  Ky.,  Ida., 
S.  C.  9,  7  ;  S.  D.  17,  14  ;  Tex.  10,  5 ;  Utah  Mon.) ;  telephone  (La.) ;  express  (Ky., 

12,  13;  Wash.  12,  16;  W.  Va.   11,  11.  Ida.,  Mon.);  transportation  (Mon.) ;  or 
And   so   of  telegraph  companies  (Ala.  any  other  corporation  (Ky.,  Ida.). 
239 ;  Col. ;  Ky. ;  Neb. ;  Pa. ;  S.  C. ;  S.  D.  '"  Cal.  12,  20  ;  Ky.  201 ;  Wash.  12,  14. 
17,   11);  telephone  (Ala.,  Ky.,  Mon.);  "  111.,  Mich.,  Neb.,  N.  D.,  Mo.,  S.  D. 
canals  (Ark.,  Pa.) ;  bridges  (Ky.) ;  ex-  '^  La.,  N.  D.,  S.  D. 

press  (Mon.) ;  common  carrier  (Ky.) ;  or 


PART   III]  LEGISLATION  329 

the  provisions  of  this  section,  by  lease  or  otherwise,  forfeits  the 
charter.^  The  question  whether  the  roads  are  parallel  or  compet- 
ing is  one  of  fact,  to  be  determined  by  a  jury.^  The  provisions 
of  this  article  may  not  be  evaded  by  holding  companies,  control  of 
stock,  etc.^ 

§  528.  The  Rolling  Stock  and  movable  property  of  railroads  are 
declared  to  be  personal  property;  and  the  Legislature  may  pass  no 
law  exempting  it  from  execution,^  or  ordinary  direct  taxation.^ 
And  so  its  earnings  are  subject  to  ordinary  attachment  or  trustee 
process.® 

§  529.  Location.  —  No  railroad,  etc.,  organized  in  another  State 
can  exercise  the  right  of  eminent  domain  or  acquire  land  or  right  of 
way  until  duly  incorporated  in  the  State.''    (See  also  §§  505,  538.) 

No  railroad  company  shall  construct  or  operate  a  railroad  within 
four  miles  of  any  existing  town  or  city  without  providing  a  suitable 
depot  or  stopping  place  at  the  nearest  practical  point  for  the  con- 
venience of  said  town  or  city,  and  stopping  all  trains  doing  local 
business  at  said  stopping  place.  No  railroad  company  shall  deviate 
from  the  most  direct  practical  line  in  constructing  a  railroad  for  the 
purpose  of  avoiding  the  provisions  of  this  section.^  Proper  depots 
must  be  maintained  for  freight  and  passengers;  and  protecting 
devices  at  grade  crossings.^ 

The  exclusive  right  to  build  or  operate  railroads  parallel  to  its  own 
or  any  other  line  of  railroad  shall  not  be  granted  to  any  company.^" 

§  530.  O^ce  and  Oncers,  Reports,  etc.  —  "Every  railroad 
corporation  organized  or  doing  business  in  this  State  under  the  laws 
or  authority  thereof  shall  have  and  maintain  a  public  office  or  place 

1  N.  D.,  S.  D.  Miss.  185 ;  Mo.  2,  16 ;  Neb.  11,  2 ;  Okla. 

2  Ark.,  Mo.,  Pa.,  S.  C.  9,  7 ;  S.  D.  17,  13;  Tex.  10,  4;  W.  Va. 

3  Notliing  prohibited  in  this  Article    11,  8;   Utah  12,  14;   Wash.  12,  17. 
shall  be  permitted  to  be  done  by  any        *  Utah,  Wash. 

corporation   or    company,    persons    or  '  Ky. 

person,    either   for   its    or    their    own  '  Ky.  211;  Neb.  11,  8;  Okla.  9,  31. 

benefit  or  otherwise,   by  its  or  their  ^  Wy.  10,  10  (9).     So,    not   within 

holding  or  controlling  in  its  or  their  half  a  mile  of  a  town  of  three  hundred 

own  name  or  other\vise,  or  in  the  name  people   (W.  Va.  11,  10);   and  "it  may 

of    any    other   person    or    persons,    or  not  pass  within  three  miles  of  a  county 

other  corporation  or  company  whatso-  seat,     without     passing    through     the 

ever,  a  majority  of  the  capital  stock,  same"  if  the  town  will  give  right  of 

or  of  bonds  having  voting  power,  of  any  way,  etc.,  unless  prevented  by  natural 

railroad  or  transportation  company,  or  obstacles  (Miss.  187  ;  Okla.  9,  14  ;  Tex. 

corporation    created    by    or    existing  10,  9). 

under  the  laws  of  this  State,  or  doing  »  Okla.  9,  26  &  27. 

business  within  this  State  (S.  C.  9,  19).  i"  Va.  166. 
*  Ark.  17,  11;  111.  11,  10;  Ky.  212  ; 


330  THE    STATE    CONSTITUTIONS  [DOCK    III 

in  tills  State  for  the  transaction  of  its  business,  where  transfers  of  its 
stock  shall  he  made,  and  in  which  shall  be  kept  for  public  inspection 
books  in  which  shall  be  recorded  the  amount  of  capital  stock  sub- 
scribed, and  by  whom ;  the  names  of  the  owners  of  its  stock,  and  the 
amount  owned  by  them  respectively;  the  amount  of  stock  paid  in, 
and  by  whom;  the  transfers  of  said  stock;  the  amount  of  its  assets 
and  liabilities ;  and  the  names  and  place  of  residence  of  its  officers. 
The  directors  of  every  such  railroad  corporation  shall  annually  make 
a  report,  under  oath,  to  the  auditor  of  public  accounts  or  some 
officer  or  officers  to  be  designated  by  law,  of  all  their  acts  and  doings, 
which  report  shall  include  such  matters  relating  to  railroads  as  may 
be  prescribed  by  law,  and  the  Legislature  shall  pass  laws  enforcing 
by  suitable  penalties  the  provisions  of  this  section."  ^ 

"Every  railroad  corporation  or  association  operating  a  line  of 
railroad  within  this  State  shall  annually  make  a  report  to  the  auditor 
of  State  of  its  business  within  this  State,  in  such  form  as  the  Legisla- 
ture may  prescribe."  ^ 

A  majority  of  the  directors  must  be  resident  in  the  State.^ 

No  president,  officer,  director,  agent,  or  employee  of  a  railroad  or 
canal  shall  be  interested,  directly  or  indirectly,  in  furnishing  it 
material  or  supplies,  or  in  the  business  of  transportation  of  freight  or 
passengers  as  a  common  carrier  over  the  company's  works.* 

§  53L  Ultra  Vires.  —  No  company  doing  the  business  of  a 
common  carrier  can  engage  in  mining  or  manufacturing  articles  for 
transportation  over  its  works;  nor  directly  or  indirectly  engage  in 
any  other  business ;  nor  hold  land  except  such  as  is  necessary  to  its 
business.^ 

§  532.  Railroad  Commissioners  are  established  by  the  Constitu- 
tions of  several  States^  (see  also  §  202).  In  Oklahoma,  Virginia, 
and  South  Carolina  the  "  Corporation  Commission  "  have  charge  of 
all  "transporting  and  transmitting  companies."^     But  in  Oklahoma, 

^  N.  D.  140 ;  Okla.  9,  6  (report  to  be  fe?5r  own  railways  or  canals  not    ex- 
made  to  the  Corporation  Commission) ;  ceeding  fifty  miles  in  length  (Pa.). 
S.  D.  17,  12.     And  so  of  all  public  ser-        «  Cal.   12,  22 ;    Ky.  209 ;    La.  283 ; 
vice  corporations  (Okla.).  Neb.  1905,  233  ;  S.  C.  9,  14.    So,  "they 

2  Ark.  17,  13;    W.  Va.  11,  7;    Wy.  may    be   estabhshed   by   the    Legisla- 

10,  10  (3).  ture,"  N.  D.  142;  Tex.,  1889,  p.   171, 

'  111.  11.  11.  1893,  p.  213;  Wash.  12,  18. 

*  Ark.  17,  5 ;  Cal.  12, 18 ;  Mo.  12,  22 ;  '  The  Virginia  and  Oklalioma  Con- 
Pa.  17,  6.  stitutional    provisions    concerning    the 

^  Ky.   210;  Okla.  9,  12;   Pa.  17,  5.  Corporation  Commission  are  so  prolix 

But    mining    or    manufacturing    com-  that  it  is  impossible  to  give  more  than 

panies    may  carry  their  product  over  an  abstract  in  the  note.     Briefly  stated 


PART   III] 


LEGISLATION 


331 


the  legislature  may  repeal  Art.  9  §§  18-34,  being  practically  all 
constitutional  provisions  relating  to  railroads,  after  January,  1909 
(9,  35). 


they  are  as  follows:  The  State  Cor- 
poration Commission  consists  of  three 
members  appointed  by  the  Governor 
(Va.) ,  elected  by  the  people  (Okla.),  for 
six  years  respectively,  one  going  out 
each  two  years.  No  person  can  hold 
office  as  a  member  of  such  Commission 
while  employed  by  or  holding  any  office 
in  any  transportation  or  transmis- 
sion company  or  financially  interested 
therein  (Okla.,  Va.),  or  engaged  in 
practising  law  (Va.),  or  in  any  other 
business  (Okla.),  although  at  least  one 
of  the  Commission  must  have  the  cjuali- 
fications  prescribed  for  a  judge  of  the 
Circuit  Court  of  Appeals  (Va.).  Then 
there  are  provisions  much  like  the 
Massachusetts  statutes  concerning  the 
Railroad  Commission  as  to  their  rules, 
sittings,  officers,  etc. :  Okla.  9,  16-19 ; 
Va.  155.  After  1908  the  Legislature 
may  provide  for  the  election,  instead  of 
the  appointment,  of  the  members  of 
such  Commission  (Va.). 

The  Corporation  Commission  issues 
all  charters  and  amendments  or  exten- 
sions thereof  for  domestic  corpora- 
tions and  all  licenses  to  do  business  for 
foreign  corporations  (Va.)  and  has 
general  supervision  and  control,  with 
power  to  require  evidence  and  reports, 
etc.  (Okla.,  Va.).  They  may  prescribe 
rates,  charges,  classifications  of  traffic, 
and  rules  and  regulations,  and  may 
require  railroads,  etc.,  to  estabhsh  such 
pulalic  services  as  may  be  reasonable, 
and  all  other  rates  or  charges  shall  be 
void,  and  may  inspect  books  and  papers, 
require  evidence  under  oath,  etc.  (Okla. 
9,  28;  Va.).  Before  fixing  any  rate  or 
making  any  order  directed  against  one 
or  more  companies  by  name,  such  com- 
pany shall  be  given  ten  days'  notice 
with  an  opportunity  to  be  heard  ;  and  of 
general  orders  directed  not  against  any 
specific  company,  there  must  be  four 
weeks'  publication  in  a  capital  news- 
paper with  notice  of  hearing  (Okla., 
Va.).  Notliing  in  this  section  is  to 
interfere  with  the  paramount  authority 
of  the  Legislature  (Va.).  But  the 
authority  of  the  Commission  to  make 
rates,  subject  to  appeal  to  the  courts, 


is  paramount  (Okla.).  Nor  to  impair 
any  right  heretofore  or  hereafter  con- 
ferred by  law  upon  the  authorities  of 
any  city,  town,  or  county  to  fix  rates 
or  prescribe  regulations,  etc.,  as  to  rates 
of  public  service  corporations  therein 
(Okla.,  Va.).  The  Commission  has  the 
general  powers  of  a  court  of  record, 
may  administer  oaths,  compel  the  at- 
tendance of  witnesses  and  the  produc- 
tion of  papers,  and  punish  for  contempt, 
etc.  (Okla.  9,  19;  Va.).  From  any 
action  of  the  Commission  prescribing 
rates,  charges,  or  other  ortlers  an  appeal 
may  be  taken  by  the  corporation  or  by 
the  Commonwealth  to  the  Supreme 
Court  but  prior  to  the  reversal  of 
such  order  by  the  Court  no  action 
of  the  Commission  is  delayed  or  sus- 
pended until  a  suspending  bond  shall 
first  have  been  executed  and  filed  with 
and  approved  by  the  Commission,  pay- 
able to  the  Commonwealth  to  secure 
all  charges  which  such  company  may 
collect  or  receive  pending  the  appeal 
in  excess  of  those  fixed  by  the  final 
decision.  All  such  appeals  have  prece- 
dence in  the  Court  of  Appeals.  No 
new  evidence  may  be  introduced  upon 
the  appeal.  If  the  Court  reverse  the 
order  of  the  Commission  affecting  rates, 
etc.,  it  shall  substitute  therefor  such 
order  as  it  deem  reasonable,  which 
substituted  order  has  the  same  force 
and  effect  as  if  entered  by  the  Com- 
mission originally.  The  right  of  any 
person  to  institute  in  the  ordinary 
courts  any  action  or  suit  against  any 
transportation  or  transmission  com- 
pany for  any  claim  or  cause  of  action 
is  not  extinguished  or  impaired  by 
reason  of  any  fine  or  other  penalty 
wliich  the  Commission  may  impose 
upon  such  company,  but  in  no  such 
proceeding  shall  the  reasonableness  or 
justness  of  any  rate  or  order,  etc.,  made 
by  the  Commission  within  the  scope 
of  its  authority  and  then  in  force,  be 
questioned.  The  Commission  makes 
annual  reports  to  the  Governor,  etc. 
(Va.  156-157;  Okla.  9,  20-25).  And 
in  Oklahoma  they  must  report  the 
cost  of   road,    rebuilding   cost  or   "re- 


332  THE    STATE   CONSTITUTIONS  [hOOK    III 

The  ronstitutioii  of  TiOuIsiaiiii  providers  for  a  Railroad,  Express, 
Telcplioiie,  Tclograpli,  Stcainhoat,  and  Sk'cpin<;^  Car  Coinini.s.sion  to 
be  composed  of  three  iiu-iiiht'rs  to  be  elected  IVoiii  the  State  Districts, 
which  Commission  has  power  to  adopt  or  change  reasonable  and 
just  rates,  charges,  and  regulations,  to  govern  the  tariffs  and  service 
of  such  several  companies,  to  prevent  them  from  charging  any 
greater  compensation  in  the  aggregate  for  the  like  kind  of  property 
or  passengers  for  a  sliorter  than  a  longer  distance  over  the  same  line 
unless  specially  authorized  by  the  Commission;  to  require  suitable 
depots,  switches,  and  appurtenances,  to  inspect  railroads  and  require 
them  to  keep  their  tracks,  etc.,  in  a  safe  condition,  and  to  fix  and 
adjust  rates  between  branch  or  short  lines  and  the  great  trunk  lines 
with  which  they  connect.  The  Commission  may  further  adopt 
reasonable  rules,  regulations,  etc.,  may  hear  and  determine  com- 
plaints, and  regulate  investigations,  and  compel  the  attendance  of 
witnesses  and  compel  the  production  of  testimony,  etc.,  and  punish 
for  contempt  as  fully  as  is  provided  by  law  for  the  district  courts. 
Railroads  and  other  companies  dissatisfied  with  the  decision  or 
rate  may  appeal  to  the  Supreme  Court  of  the  State.  The  powers  of 
the  Commission  go  only  to  matters  within  the  State  lines.  ^ 

The  Legislature  is  empowered  to  add  to  or  enlarge  the  powers  of 
such  Commission;  and  no  person  in  the  service  of  any  such  rail- 
way or  other  company  can  be  a  Commissioner.^ 

§  534.  Liabilities.  —  The  fellow-servant  doctrine  as  to  em- 
ployees of  railroads  is  done  away  with  by  some  new  State  Constitu- 
tions ;  ^  and  railroads  are  responsible  for  all  damages  to  persons  or 
property  to  their  employees  as  to  others.* 

The  Constitution  of  Arkansas  provides  that  all  railroads  shall  be 
responsible  for  all  damages  to  person  or  property,  under  such  regula- 
tions as  are  prescribed  by  the  Legislature ;  and  that  the  Legislature 
shall  require,  by  suitable  laws,  the  necessary  means  and  appliances 
to  secure  the  safety  of  passengers  on  railroads  and  other  public 
conveyances.^ 

valuation,"  debt,  stock,  bonds,  prices  *  La.  283-285. 

received  therefor,  salaries  and  wages  ^  La.  287,  288. 

paid,  etc.,    at    once  to  the   Attorney  ^  Okla.  9,  36;  S.  C.  9,  15;  Va.  162; 
General,  and    in  their  annual  reports   Miss.  193.     And  also  of  mines  (Okla.). 

(Okla.    9,    29).     And    they    must    in-  ^  S.  C,  Miss, 

vestigate  and  report,  when  necessary,  ^  Ark.  17,  12 ;   19,  18. 
to  the  Interstate  Commerce  Commis- 
sion (Okla.  9,  32). 


PART   III]  LEGISLATION  333 

And  it  is  unlawful  for  any  person  or  corporation  to  require  of  its 
employees,  as  a  condition  of  their  employment  or  otherwise,  any 
contract  or  agreement  whereby  the  company  is  released  from  lia- 
bility on  account  of  personal  injuries  received  by  such  employees 
while  in  its  service,  by  reason  of  the  negligence  of  the  company  or 
its  servants;  and  such  contracts  are  void.' 

§  535.  Damages  for  Death. —  (See  also  §  462.)  Four  new 
Constitutions  provide  for  damages  for  death  whether  instantaneous 
or  not,  in  cases  where  damages  would  be  liable  had  death  not 
occurred ;  and  contracts  to  waive  the  benefit  of  this  section  are  made 
void.- 

The  Constitutions  of  other  States  provide  that  every  person  or 
corporation  that  may  commit  a  homicide,  tlirough  wilful  act  or 
omission  or  gross  neglect,  shall  be  responsible  in  exemplary  dam- 
ages to  the  surviving  husband,  widow,  or  heirs,  notwithstanding  any 
criminal  proceedings  that  may  or  may  not  be  had.^ 

And  in  others,  that  no  act  of  the  Legislature  shall  limit  the  amount 
to  be  recovered  for  injuries  resulting  in  death,  or  for  injuries  to  person 
or  property;  and  in  case  of  death  resulting  therefrom,  the  right  of 
action  shall  survive  for  the  benefit  of  such  persons  as  the  Legislature 
may  prescribe  (see  §  402)  .*    And  also,  that  no  act  shall  prescribe 

*  Col.  15,  15  ;  Wy.  10,  4.  gerous  or  unsafe  cars  or  engines  volun- 

-  Okla. ;  S.  C.  9,  15;  Va.  161 ;  Miss,  tarily  operated  by  them.    When  death 

193.     Thus:   "Every  employee  of  any  ensues  from  any  injury  to  employees, 

railroad    corporation    shall    have    the  the   legal   or   personal   representatives 

same  rights  and  remedies  for  any  in-  of  the  person  injured  shall  have  the 

jury  suffered  by  Mm  from  the  acts  or  same  right  and  remedies  as  are  allowed 

omissions  of   said   corporations  or  its  by  law  to  such  representatives  of  other 

employees  as  are   allowed   by  law  to  persons.     Any  contract  or  agreement, 

other  persons  not  employees,  when  the  expressed   or   imphed,    made   by   any 

injury  results  from  the  negUgence  of  a  employee  to  waive  the  benefit  of  tliis 

superior  agent  or  officer,  or  of  a  person  section,  shall  be  null  and   void ;    and 

having   a   right   to    control    or   direct  tliis    section    shall    not    be    construed 

the  services  of  a  party  injured,   and  to  deprive  any  employee  of  a  corpora- 

also  when  the  injury  results  from  the  tion,   or   liis   legal   or   personal   repre- 

negligence  of  a  fellow  servant  engaged  sentative,  of  any  remedy  or  right  that 

in  another  department  of  labor  from  he  now  has  by  the  law  of  the  land, 

that  of  the  party  injured,  or  of  a  fellow  The    General    Assembly    may    extend 

servant   on  another  train  of  cars,   or  the   remedies   herein   provided   for   to 

one   engaged   about   a  different  piece  any  other  class  of  employees."     (Miss. 

of  work.    Knowledge  by  any  employee  193 ;    S.  C.  9,    19.)     Other   provisions 

injured    of    the    defective    or    unsafe  are  substantially  similar  (Okla.  9,  36; 

character    or    condition    of    any    ma-  Va.  162). 

chinery,  ways,  or  appliances  shall  be  ^  Ky.  241 ;  Tex.  16,  26 ;  Wy.  10,  4. 

no    defence    to    an    action   for   injury  *  Ark.  5,    32;    Ky.  54;  Pa.  3,   21. 

caused    thereby,    except    as    to    con-  The   Legislature    are    to    prescribe    to 

ductors  or  engineers  in  charge  of  dan-  whom  the  damages  belong  (Ky.). 


334  THE   STATE   CONSTITUTIONS  [BOOK   III 

any  limitation  of  time  within  wliicii  such  suits  shall  be  brought 
against  corporations,  different  from  those  fixed  by  general  laws  for 
actions  against  natural  persons.' 

Whenever  the  death  of  a  person  sliall  result  from  an  injury  in- 
flicted by  negligence  or  wrongful  act,  then,  in  every  such  case, 
damages  may  be  recovered  for  such  death,  from  the  corporations  and 
persons  so  causing  the  same.  Until  otherwise  provided  by  law,  the 
action  to  recover  such  damages  shall  in  all  cases  be  prosecuted  by 
the  personal  representative.  The  same  shall  form  part  of  the 
personal  estate  of  the  deceased  person. - 

§  53G.  Street  Railways.  —  The  Constitutions  of  several  States 
provide  that  no  law  shall  be  passed  authorizing  the  construction  of  a 
street  railroad  ^  in  a  town  or  city  without  the  consent  of  one-half  in 
value  of  the  abutting  property  owners,^  or  the  consent  of  the 
local  authorities^  or  of  the  electors,^  and  this  consent  is  also  re- 
quired for  gas,  water,  telephone,  light  companies,  etc.,''  or  any 
public  service.  Except,  however,  a  petition  may  be  brought,  in 
New  York,  in  the  Supreme  Court,  in  case  the  consent  of  property 
owners  cannot  be  obtained. 

§  537.  Telegraph  Companies.  —  Any  association  or  corporation 
organized  for  the  purpose,  or  any  individual,  shall  have  the  right  to 
construct  and  maintain  lines  of  telegraph  and  telephone  within  this 
State,  and  connect  the  same  with  other  lines;  and  the  Legislature 
shall,  by  general  law  of  uniform  operation,  provide  reasonable 
regulations  to  give  full  effect  to  this  section.^  No  telegraph  or  tele- 
phone company  shall  consolidate  with  any  other,  etc.     (See  §  527.) 

Cities  and  towns  may,  however,  control  the  location  of  such 
companies.^ 

Said  companies  shall  receive  and  transmit  each  other's  messages 
without  delay  or  discrimination.  ^° 

Railroad  corporations  organized  or  doing  business  in  this  State 
shall  allow  telegraph  and  telephone  corporations  and  companies  to 

'  Pa.  8  Neb.  13,  2. 

^  Ky.  241.  7  Ala.,  Ky.    See  note  5. 

3  And  so  of  telegraph  or  telephone        »  Ala.  239;    Ida.  11,  13;    Ky.  199; 
(N.    D.,    S.    C,    Utah,    Wy.),    electric  Men.  15,  14;   S.  D.  17,  11;  Wash.  12, 
(S.  C,  Wy.),  gas  (S.  C),  or  water  com-  19;  Wy.  10,  10  (7). 
panies  (S.  C).  »  Ky. 

*  N.Y.  3,18;Tex.lO,7;  W.Va.  11,5.        '°  Ky. ;  N.  D.  142  ;  Okla.9,5;  S.  D. ; 

«  Ala.  220;    Col.  15,  11;    Ga.  3,  7,  Wash.  12,  19.     See  also  §  526. 
20;    111.  11,  4;    Ky.  163;    Mo.  12,20; 
Okla.  9,  10;  Pa.  17,  9;   S.  C.  S,  4. 


PART   III]  LEGISLATION  335 

construct  and  maintain  telegraph  lines  on  and  along  the  rights-of- 
way  of  such  railroads  and  railroad  companies,  and  no  railroad 
corporation  organized  or  doing  business  in  this  State  shall  allow  any 
telegraph  corporation  or  company  any  facilities,  privileges,  or  rates 
for  transportation  of  men  or  material,  or  for  repairing  their  lines,  not 
allowed  to  all  telegraph  companies.  The  right  of  eminent  domain 
is  hereby  extended  to  all  telegraph  and  telephone  companies.  The 
Legislature  shall,  by  general  law  of  uniform  operation,  provide 
reasonable  regulations  to  give  effect  to  this  section.^ 

§  538.  Foreign  railroads  (see  also  §§  505,  529)  or  teiegraph  lines 
shall  do  no  business  within  this  State  without  having  an  agent 
or  agents  within  each  county  through  which  such  railroad  or 
telegraph  line  shall  be  constructed  upon  whom  process  may  be 
served." 

In  South  Carolina  and  Mississippi  no  foreign  road  can  operate  in 
the  State.      (See  also  §  529.) ^ 

§  539.  Local  Aid.  —  Neither  the  State,  nor  any  county,  town- 
ship, school  district,  or  municipality  shall  loan  or  give  its  credit  or 
make  donations  to  or  in  aid  of  any  railroad  *  or  telegraph  line.'^ 
Provided,  that  this  section  shall  not  apply  to  obligations  of  any 
county,  city,  township,  or  school  district,  contracted  prior  to  the 
adoption  of  this  Constitution."     (See  also  §§  326,  335,  345,  370.) 

§  540.  Taxation. —  (See  §  528.)  State  franchise  taxes  may  be 
imposed,  and  the  Legislature  in  its  discretion  may  make  the  same  in 


'  Wash.  12,  19.  become  a  domestic  corporation  of  this 

^  Wy.  10,  10  (8).  State.    No  general  or  special  law  shall 

^  "The  General  Assembly  shall  not  ever  be  passed  for  the  benefit  of  any 
grant   to   any   foreign   corporation   or  foreign    corporation    operating   a   rail- 
association  a  license  to  build,  operate,  road  under  any  existing  license  of  this 
or  lease  any  railroad  in  this  State ;   but  State  or  under  any  existing  lease,  and 
in  all  cases  where  a  railroad  is  to  be  no  grant  of  any  right  or  privilege  and 
built    or    operated,    or    is    now    being  no  exemption  from  any  burden  shall 
operated,  in  this  State,  and  the  same  be  made  to  any  such  foreign  corpora- 
shall  be  partly  in  this  State  and  partly  tion,  except  upon  the   condition  that 
in   another  State,   or  in  other  States,  the    owners    or    stockholders    thereof 
the  owners  or  projectors  thereof  shall  shall   first    organize    a   corporation    in 
first    become    incorporated    under   the  this  State  under  the  laws  thereof,  and 
laws  of  this  State  ;  nor  shall  any  foreign  shall   thereafter   operate   and   manage 
corporation    or    association     lease    or  the    same    and    the    business    thereof 
operate  any  railroad  in  this  State,  or  under  said  domestic   charter."     (Miss, 
purchase    the    same    or    any    interest  197;  S.  C.  9,  8.) 
therein.    Consolidation  of  any  railroad        *  Mon.  5,  37 ;   Wy.  3,  39 ;    10,  5. 
lines   and    corporations   in    this    State        ^  Wy. 
with    others    shall    be    allowed    only        ^  Wy. 
where  the  consolidated  company  shall 


33G  THE   STATE   CONSTITUTIONS  [BOOK   III 

lieu  of  taxes  upon  otluT  j)rop(Tty  of  a  transportation,  industrial,  or 
commercial  corporatioii ;  hut  wlini  such  franchise  tax  is  inijxiscd 
upon  a  corporation  doini^  husiness  in  the  State,  or  whenever  all  the 
capital,  however  invested,  of  a  State  cor{)oration  is  taxed,  tlie  shares 
of  stock  shall  not  be  further  taxed.' 

"The  franchise,  roadway,  roadbed,  rails,  and  rolling  stock  of  all 
railroads  oj^erated  in  this  State  shall  be  assessetl  by  the  State  Board 
of  Equalization  at  their  actual  value,  and  such  assessed  valuation 
shall  be  apportioned  to  the  counties,  cities,  towns,  townships,  and 
districts  in  which  said  roads  are  located,  as  a  basis  for  taxation  of 
such  property,  in  proportion  to  the  number  of  miles  of  railway  laid 
in  such  counties,  cities,  towns,  townships,  and  districts."  - 

"The  Legislative  Assembly  may,  by  law,  provide  for  the  payment 
of  a  per  centum  of  gross  earnings  of  railroad  companies  to  be  paid 
in  lieu  of  all  State,  county,  township,  and  school  taxes  on  property 
exclusively  used  in  and  about  the  prosecution  of  the  business  of  such 
companies  as  common  carriers,  but  no  real  estate  of  said  corporations 
shall  be  exempted  from  taxation  in  the  same  manner  and  on  the 
same  basis  as  other  real  estate  is  taxed,  except  roadbed,  right  of  way, 
shops,  and  buildings  used  exclusively  in  their  business  as  common 
carriers;  and  whenever  and  so  long  as  such  law^  providing  for  the 
payment  of  a  per  centum  on  earnings  shall  be  in  force,  that  part  of 
§  179  of  this  article  relating  to  assessments  of  raih'oad  property  shall 
cease  to  be  in  force.  "  ^ 

In  Virginia  the  State  Corporation  Commission  are  to  assess  the 
real  estate,  rolling  stock,  and  personal  property  of  railroads,  the 
canal  bed,  real  estate,  and  boats  of  canals,  and  such  property  shall 
be  taxed  for  State,  county,  city,  town,  and  district  purposes  as 
authorized  by  law  at  such  rates  of  taxation  as  may  be  imposed  by 
them  respectively  on  the  real  estate  and  personal  property  of  natural 
citizens,  provided  that  no  tax  shall  be  laid  upon  the  net  income; 
but  such  railway  or  canal  shall  also  pay  an  annual  State  franchise 
tax  equal  to  one  per  centum  upon  its  gross  receipts,  which  tax  shall 
be  in  lieu  of  all  other  taxes  or  charges  upon  the  franchises  or  shares 
of  stock  or  property  except  the  annual  fee,  etc.  When  the  road  or 
canal  does  not  lie  wholly  within  the  State,  the  tax  shall  be  equal  to 
one  per  cent  of  the  gross  transportation  receipts  earned  wathin  the 
State,  ascertained  by  determining  the  average  gross  per  mile  over  its 

»  Va.  170.     See  O.  1904,  p.  652.  ^  n.  D.  176. 

2  Mon.  12,  16;  N.  D.  179. 


PAP.T   III]  LEGISLATION  337 

whole  extent  and  multiplying  the  result  by  the  number  of  miles 
operated  in  the  State,  with  a  reasonable  deduction  for  excess  of 
value  for  terminal  facilities,  etc.,  in  other  States.^ 

§  541.  Switches  etc.  —  The  Oklahoma  Constitution  provides  that 
any  person  or  corporation  may  construct  spur  tracks  to  its  mine, 
mill,  etc.,  and  compel  the  railway  to  maintain  the  switch.^ 


Article  55.    Banks 

§  550.  State  Baiiks  Forbidden.  —  The  Constitutions  of  a  few 
States  forbid  the  creation  or  renewal  of  corporations  with  banking  or 
discounting  privileges.^  And  in  several,  any  act  establishing  banks 
must  first  be  approved  by  a  majority  of  the  people,  at  a  general 
election.*  State  banks  are  forbidden  in  Illinois;  and,  in  other 
States,  the  State  may  not  hold  stock  in  any  bank.^  See  also  §  326. 
Any  banking  law  may  be  amended  or  repealed.^  But  in  others, 
such  corporations  may  be  formed  under  general  laws,^  though 
such  banking  law  must  receive  a  two-thirds  vote  of  the  Legislature.^ 

So,  in  a  few,  no  special  charter  can  be  granted  for  banking  pur- 
poses.®    (See  also  §  395  and  §  502.) 

§  551.  Money  and  Banknotes.  —  In  several,  no  corporation  or 
individual  can  circulate  as  money  anything  but  the  lawful  money  of 
the  United  States.^"  So,  all  banknotes  must  be  redeemable  in  the 
lawful  money  of  the  United  States,"  or  in  gold  and  silver.'-  No  note 
can  be  issued  of  less  than  one  dollar.'^  Banknotes  are  allowed, 
secured  by  State  or  United  States  bonds.'* 

§  552.  Specie  Payments.  —  In  several,  the  Legislature  can  pass 
no  law  sanctioning  the  suspension  of  specie  payments  by 
banks. '^ 

»  Va.  176-179.  *  Minn. 

^  Okla.  9,  33.  »  Ind.   11,  2;    Kan.  13,  1;    N.  Y. 

3  Ore.  11,  1;   Wis.  11,  4.  3,  4;  S.  C. 

*  lo.  8,  5;    111.  11,  5;    Kan.  13,  8;  '°  Ark.    12,    10;    Cal.;     Nev.    8,   6; 

Mich.   15,  2;    Mo.   12,  26;    O.   13,  7;  Ore.;  Wash.  12,  11. 

Wis.  11.  5.  "  Kan.  13,  4. 

«  Ala.  253;   Ind.  11;   111.;  Kan.  13,  '-  Ala.  249. 

5;  Mo.  12,  25.  '^  Kan.  13,  7. 

«  Kan.  13,  9.  '*  Ala.  248;  S.  D.  18,  1. 

'  Ala.  248;    Cal.   12,  5;    Minn.  9,  »'  Ala.    249;  Ind.  11,  7;    111.  11,  7; 

13;   Miss.  181;  Okla.  14,  1;  S.  C.  9,  9;  lo.  8,  11;   Mich.  15,  6;    Minn.  9,  13; 

Tex.  1904,  p.  249;  W.  Va.  11,  6;  Wy.  N.  Y.  8,  5. 
3,27. 

22 


338  THE    STATE   CONSTITUTIONS  [bOOK   III 

§  553.  Security  of  Nofcs. —  (See  also  §  551.)  In  many,  the 
Legislature  are  to  provide  by  law  for  the  rej^istry  of  all  bills  or  notes 
issued  as  money,  and  shall  recjuiie  ample  .security  for  their  redemption 
in  specie.' 

§  554.  Insolvencij  of  Banks.  —  The  Constitution  makes  it  a  crime 
for  any  officer  or  owner  of  a  private  or  public  bank  to  assent  to  the 
reception  of  deposits  or  the  creation  of  debts  by  such  bank  after  he 
has  knowledge  that  it  is  in  insolvent  or  failing  circumstances,  and 
he  is  individually  responsible  for  such  debts  or  deposits.'  The  bill- 
holders  have  preference  over  all  other  creditors  of  an  insolvent 
bank.^ 

§  555.  Stockholders  of  a  bank  are,  in  a  few  States,  individually 
liable  for  its  debts,  over  and  above  their  stock,  to  the  amount  of  the 
stock  held  by  them."*  But  in  others,  they  are  liable  only  to  the 
amount  of  their  unpaid  stock.^  In  one,  to  double  such  amount  of 
stock."  And  in  one,  they  are  liable  for  all  debts  of  the  bank  con- 
tracted while  they  are  officers  or  such  stockholders,  each  for  his 
proportion,  according  to  the  amount  of  stock  owned  by  him.'' 

§  556.  Interest.  —  The  Constitution  of  Indiana  provides  that  no 
bank  shall  receive,  directly  or  indirectly,  a  greater  rate  of  interest 
than  is  allowed  to  individuals  loaning  money.*^  In  Oklahoma,  the 
article  on  banking  provides  that  it  shall  be  six  per  cent,  or  by 
contract,  ten  per  cent.* 

§  557.  Limitation  of  Charter.  —  By  the  Constitutions  of  two, 
every  bank  shall  be  required  to  cease  all  banking  operations  within 
twenty  years  from  the  time  of  its  organization  and  promptly  close  its 
business.'" 

§  558.  Trust  Companies  and  individuals  are  included  in  the 
provisions  of  the  banking  law.''  No  trust  company  or  bank  may  own 
or  hold  stock  in  another  such  company  except  by  bona  fide  pledge, 
and  then  must  dispose  of  the  same  within  one  year  as  in  §  518.'^ 

1  Ind.  11,  3;    111.  11,  8;    lo.  8,  8;  p.  249;    Utah    12,    18;  Wash.    12,  11. 

Kan.  13,  2 ;   Mich.  15,  4 ;   Minn.  9,  13 ;  For  a  year  after  they  sell  their  stock. 

N.  Y.  8,  6;  N.  D.  145;  Pa.  16,  9;  S.  D.  (S.  D.,  Tex.)     Stock  must  be  paid  up 

18,  20.  in  cash  (Tex.).     (See  also  §  512.) 

»  Ky.  204 ;    La.  269 ;    Mo.   12,  27 ;  «  Kan. ;  Md.  3,  39. 

Wash.  12,  12.  "  Minn.  9,  13. 

3  Ala.  250;    To.  8,  10;    Ind.  11,  8;  '  Mich.  15,  3. 

Mich.  15,  5;   Minn.  9,  13;    Kan.  13,  4;  «  Ind.  11,  9. 

N.  Y.  8,  8.  '  Okla.  14.  2. 

*  (See  also  §  509.)  Ind.  11,  6;  111.  11,  "  Ind.  11,  10;  S.  D.  18,  2. 

6 ;    lo.  8,  9 ;  Neb.  13,  7 ;   N.  Y.  8,  7 ;  "   Ala.  255. 

S.  C.  9,  IS;    S.  D.  18,  3;  Tex.  1904,  '=  Okla.  9,  41. 


PART   III]  LEGISLATION  339 

§  559.    Reports  (semi-annual)  must  be  made  to  the  State  banking 
ofEcer.' 


Article  56.    Insurance  Companies 

§  560.  Deposit.  —  The  Georgia  Constitution  provides  that  all 
foreign  or  domestic  Hfe-insurance  companies  doing  business  in  the 
State  shall  deposit  $100,000  in  good  securities  with  the  comptroller 
of  the  insurance  commissioners  of  this  State  or  the  State  where 
they  are  chartered;  and  all  companies  must  make  semi-annual 
reports.^ 

Article  57.    Miscellaneous  Corporations 

§  570.  Religious.  —  In  one  State,  no  religious  corporation  can 
be  established  in  the  State  except  such  as  may  be  formed  under  a 
general  law  for  the  purpose  of  holding  title  to  such  real  estate  as  may 
be  allowed  them  by  law.^  In  one  other,  the  title  to  all  property  of 
religious  corporations  vests  in  trustees,  elected  by  their  members.* 
The  Legislature  shall  not  grant  a  charter  of  incorporation  to  any 
church  or  religious  denomination,  but  may  secure  the  title  to  church 
property  to  an  extent  to  be  limited  by  law.^ 

§  571.  Co-operative.  —  The  Legislature  shall  provide  by  suitable 
legislation  for  the  organization  of  mutual  co-operative  associations 
or  corporations.® 

Article  58.    Trusts,  Monopoly,  etc. 

§  580.  General  Principles.  —  (See  also  §§  518,  526.)  "It  shall 
be  the  duty  of  the  General  Assembly  from  time  to  time,  as  necessitv 
may  require,  to  enact  such  laws  as  may  be  necessary  to  prevent  all 
trusts,  pools,  combinations,  or  other  organizations,  from  combining 
to  depreciate  below  its  real  value  any  article,  or  to  enhance  the 
cost  of  any  article  above  its  real  value."  ^ 

"The  General  Assembly  shall  enact  laws  to  prevent  all  trusts, 
combinations, contracts,  and  agreements  against  the  public  welfare."^ 

1  Ala.  254.  "  Va.  6,  47. 

2  Ga.  3,  12,  1  &  3  &  5.  «  Wy.  10,  10. 
'  Mo.  2,  8.  7  xy.  198. 

*  Kan.  12,  3.  «  S.  C.  9,  8;  Miss.  198;  Va.  165. 


340  THE    STATE   CONSTITUTIONS  [f.OdK    III 

"Full  and  fair  competition  in  the  trades  and  industries  is  an 
inherent  and  essential  right  of  the  people,  and  should  he  protected 
against  all  monopolies  and  conspiracies  which  tend  to  hinder  or 
destroy."  ' 

The  Legislature  shall  define  what  is  an  unlawful  combination, 
monopoly,  trust,  act,  or  agreement,  in  restraint  of  trade,  and  enact 
laws  to  punish  persons  engaged  in  any  unlawful  combination,  mo- 
nopoly, trust,  act,  or  agreement,  in  restraint  of  trade,  or  composing 
any  such  monopoly,  trust,  or  combination. ~ 

§  581.  Monopolies  and  Perpetuities  are  "contrary  to  the  genius 
of  a  free  State  and  should  not  be  allowed."  ^  And  so,  in  others,  of 
"monopolies  and  trusts,"  *  or  monopolies  simply.^ 

In  California,  the  Constitution  declares  that  the  holding  of  large 
tracts  of  land,  uncultivated  and  unimproved,  by  individuals  or 
corporations,  is  against  the  public  interest,  and  should  be  discouraged 
by  all  means  not  inconsistent  with  the  rights  of  private  property.® 

Any  combination  between  individuals,  corporations,  associations, 
or  either,  having  for  its  object  or  effect  the  controlling  of  the  price 
of  any  product  of  the  soil  or  any  article  of  manufacture  or  commerce, 
or  the  cost  of  exchange  or  transportation,  is  prohibited  and  hereby 
declared  unlawful  and  against  public  policy,^  and  any  and  all 
franchises  heretofore  granted  or  extended,  or  that  may  hereafter  be 
granted  or  extended  in  this  State,  whenever  the  owner  or  owners 
thereof  violate  this  article,  shall  be  deemed  annulled  and  become 
void.^ 

All  just  power  possessed  by  the  State  is  hereby  granted  to  the 
General  Court  to  enact  laws  to  prevent  the  operations  within  the 
State  of  all  persons  and  associations,  and  all  trusts  and  corporations, 
foreign  or  domestic,  and  the  officers  thereof,  who  endeavor  to  raise 
the  price  of  any  article  of  commerce  or  to  destroy  free  and  fair  com- 
petition in  the  trades  and  industries  tlirough  combination,  con- 
spiracy, monopoly,  or  any  other  unfair  means;  to  control  and 
regulate  the  acts  of  all  such  persons,  associations,  corporations, 
trusts,  and  officials  doing  business  within  the  State;    to  prevent 

»  N.  H.  2,  82.  Decl.  Rts.  41;  Okla.  2,  32;  Tenn.   1, 

»  Okla.  5,  44.  22;  Tex.  1,  26;  Wy.  1,  30. 

3  Wy.  1,  30.      (See  also  §  518.)  «  Cal.  17,  2. 

*  S.  D.  17,  20;  Wash.  12,  32.  ^  N.  D.  146;    Utah  12,  20.     So  in 

^  Ark.  2,    19 ;    Ida.    2,    32 ;  N.    M.  Minnesota,  but    as   to    food   products 

*1851,  July  12,  §  17;  La.  276  (except  only  (Minn.  1889,  1). 

slaughtering  businesses  which  may  be  *  N.    D.      So    the    legislature    shall 

regulated  by  cities);   N.  C.  1,  31;   Md.  pass  laws  to  forfeit,  etc.  (Utah.) 


PART    III]  LEGISLATION  341 

fictitious  capitalization;  and  to  authorize  civil  and  criminal  pro- 
ceedings in  respect  to  all  the  wrongs  herein  declared  against.' 

The  Legislature  shall  provide  by  law  for  the  regulation,  prohi- 
bition, or  reasonable  restraint  of  common  carriers,  partnerships^ 
associations,  trusts,  monopolies,  and  combinations  of  capital,  so  as 
to  prevent  them  or  any  of  them  from  making  scarce  articles  of  neces- 
sity, trade,  or  commerce,  or  from  increasing  unreasonably  the  cost 
thereof  to  the  consumer,  or  preventing  reasonable  competition  in 
the  calling,  trade,  or  business.- 

It  shall  be  unlawful  for  persons  or  corporations,  or  their  legal 
representatives,  to  combine  or  conspire  together,  or  to  unite  or  pool 
their  interests  for  the  purpose  of  forcing  up  or  down  the  price  of  any 
agricultural  product  or  article  of  necessity,  for  speculative  purposes; 
and  the  Legislature  shall  pass  laws  to  suppress  it.^ 

Article  60.    Municipal  Corporations  * 

§  600.  Local  Government.  —  It  is  in  many  States  provided  that 
the  Legislature  shall  provide  by  general  law  for  the  organization  of 
cities,  towns,  and  municipalities,  their  powers  and  duties.^  The 
same  would  follow  in  other  States  from  §  395  and  §  502. 

And  so,  in  several,  that  the  Legislature  shall  create  a  uniform 
system  of  county,  town,  and  municipal  government;®  not  dividing 
cities  into  more  than  four  classes,^  or  three  classes,*  or  six.^ 

So,  in  others,  the  Legislature  may  confer  upon  organized  town- 
ships, incorporated  cities  and  villages,'"  and  upon  the  board  of  super- 
visors of  the  several  counties,"  such  powers  of  a  local,  legislative, 
and  administrative  character  as  they  deem  proper. 

"The  Legislature  shall  not  delegate  to  any  special  commission, 
private  corporation  or  association  any  power  to  make,  supervise,  or 
interfere  with  any  municipal  improvement,   money,   property,   or 

1  N.  H.  2,  82.  18,  1,  9;  Utah  11,  4;   Va.  117;  Wash. 

^  Ala.  103.  11,  10 ;  Wis.  1891,  p.  731 ;  Wy.  11,  2  &  4. 

»  La.  190.  8  Cal.  11,  4  ;  Fla.  3,  24  ;  Ga.  11,  3,  1 ; 

*  For  financial  provisions,  see  Arts.  Ida. ;    Ky.  156 ;   Mo.  9,  7 ;   Nev.  4,  25 ; 

34,  37.  Okla.  18.  1;   S.  D. ;   Utah  11,  5;   Wis. 

«  Ark.  12,  3;    Cal.  11,  6;    1895,  p.  4,  23;  Wy. 

450 ;    Ida.  12,  1 ;    18,  5 ;  1895,  p.  257 ;  '  S.  D.  10,  1. 

lU.  10,  5 ;   Kan.  12,  5 ;  Ky.  156 ;  Mich.  »  N.  Y.  12,  1. 

15,  13;    Miss.  88;»Mo.  9,  7;    Neb.  10,  «  Ky. 

4  and  5 ;    N.  D.  167,  170 ;    N.  C.  8,  4 ;  '»  Kan.  2,  21 ;  Mich.  4,  38 ;  Wis.  4,  22. 

Nev.  8,  8;  0.13,6;  Okla.  10,  4;  S.  D.  "  Kan.;   Mich.;   N.  Y.  3,  27;   Wis. 


342  THE    STATE    CONSTITUTIONS  [BOOK    III 

efTccts,  whether  held  in  trust  or  otherwise,  to  le\'}'  taxes,  to  select 
a  capitol  site,  or  to  perform  any  municipal  functions."  ' 

In  a  few  States  the  Constitution  provides  that  any  county  may  by 
vote  adopt  the  township  form  of  governmcnt.- 

Counties  are  usually  to  be  governed  by  a  board  of  county  com- 
missioners; ^   called,  in  INIicliigan,  the  "board  of  supervisors." 

Townships  are,  in  one,  governed  by  a  board  of  trustees,  consisting 
of  a  clerk  and  two  justices  of  the  peace,  elected  by  the  voters  thereof.* 

In  a  few,  the  Constitution  provides  that  the  Legislature  may 
charter  cities  in  towns  having  more  than  10,000,^  12,000,"  or  20,000' 
inhabitants. 

In  two,  any  city  having  a  population  of  more  than  20,000  *  or 
100,000  °  may  frame  a  charter  for  itself  (by  a  special  process,  sub- 
ject to  certain  restrictions).  And  the  States  are  rapidly  adopting 
constitutional  provisions  permitting  all  cities  and  towns  to  frame 
their  own  charters.'" 

§  COl.  Municipalities.  —  The  Constitutions  of  a  few  States 
provide  that  each  organized  county  shall  be  a  body  corporate,  with 
such  powers  and  immunities  as  shall  be  established  by  law;  "  and 
so  each  organized  township.'" 

All  suits  and  proceedings  by  or  against  a  county  or  township  shall 
be  in  the  name  thereof.'^ 

*  Utah  6,  29 ;  Wy.  3,  37 ;  Mon.  5,  class  are  contained  in  a  Constitutional 
36;  S.  D.  3,  28.  Amendment    which    provides    further 

-  Cal. ;    111. ;    Mo.  9,  S ;    Neb.  10,  5 ;  that  it  may  at  any  time  be  amended 

N.  D.  170;  Wash.  11,  4.  [or  abohshed?]  by  the  voters  of  the 

*  Ida.  18,  10 ;  Ind.  6,  10 ;  111.  10,  respective  cities.  It  also  provides  for 
6;  Miss.  170;  Mon.  16,  4;  Nev.  4,  26;  the  ov/nership  and  operation  of  public 
N.  Y.  3,  26;   N.  D.  172;    Mich.   10,  6;  utilities.     (Col.  1901,  p.  46.) 

Pa.  14,  7;  Wash.  11,  5.  In  Minnesota  (1895,  p.  4),  a  charter 

^  N.  C.  11,  5.  may  be  adopted  by  a  board  of  fifteen 

®  Mass.  C.  Amt.  2.  freeholders  and  a  four-sevenths  vote. 
«  Pa.  15,  1;  Tex.  11,  4.  In  Missouri  (1901,  p.  263),  by  thir- 

'  Minn.  11,  2.  teen,  with  a  three-fifths  vote. 

*  Wash.  12,  10.  In  Oregon,   on   initiative   petition, 
»  Cal.  11,  8;  Mo.  9,  16.  June  4,  1906,  Art.  11,  §  2  of  the  Con- 

'°  Thus,  California  has  a  novel  pro-  stitution  was    amended    so    that    any 

vision,  followed  in  Oklahoma,  whereby  municipality    is    given    the    exclusive 

any  city  or  town  may,  through  a  board  right  to  enact  and  amend  its  charter, 

of  fifteen  chosen  freeholders,  frame  its  subject   only  to  the  Constitution   and 

own   charter,    which,    if   approved   by  the  criminal  laws. 

the  Governor  as  constitutional,  is  then  Town   Organization    (Mo.    1901,    p. 

submitted  to  the  electors  and  adopted  267)  is  elaborately  provided  for. 

by  a  majority  vote.    (Cal.  1889,  p.  231;  "  Ga.  11,  1,  1;    Mich.  10,  1;    Okla. 

1891,  p.  533;    1901,  p.  950;   Okla.)  17,  1 ;  S.  C.  7,  9. 

In   Colorado    the    charters    of     the  '^  i\iici-,_  n,  2 ;  N.  C.  7,  4. 

city  of  Denver  and  all  cities  of  the  first  '^  Ga.,  Mich. 


PART   III]  LEGISLATION  343 

Any  county,  city,  town,  or  township  may  make  and  enforce  within 
its  limits  all  local,  police,  sanitary,  and  other  regulations  not  in  con- 
flict with  general  laws.^ 

No  municipal  corporation  can  be  authorized  by  the  Legislature 
to  pass  laws  inconsistent  with  the  general  laws  of  the  State." 

§  602.  Officers.  —  The  following  persons  are,  by  the  Constitu- 
tion, declared  ineligible  to  hold  municipal  offices:  persons  in  de- 
fault as  collectors  or  custodians  of  money  or  property  of  such 
municipality.^  In  cities  or  counties  having  more  than  200,000  in- 
habitants, no  person  can  at  the  same  time  have  a  State  office  and 
a  municipal  office,  or  two  municipal  offices  together  in  any  muni- 
cipality.* The  fees  or  salaries  of  municipal  officers  cannot,  in  two 
States,  be  increased  or  diminished  during  their  terms.^  They  must 
reside  in  their  respective  counties  or  towns.^  In  one,  they  must  have 
so  resided  one  year.^    They  must  be  qualified  electors.^ 

§  603.  Citizens'  Rights.  —  By  the  Constitution  of  Arkansas,  any 
citizen  of  any  county,  city,  or  town  may  institute  suits  in  behalf  of 
himself  and  all  others  interested  to  resist  an  illegal  exaction.^ 

§  604.  Specified  Systems  of  City,  County,  or  Town  Government 
exist  in  the  Constitutions  of  a  few  States. ^"^ 

§  605.  Franchises.^^  —  The  right  to  collect  rates  for  water  fur- 
nished to  a  municipality  is,  in  California,  declared  to  be  a  franchise, 
not  to  be  exercised  except  by  authority  of  law  and  in  the  manner  by 

'  Cal.   11,   11;    Ida.   12,  2;    Wash,  after  the  Mayor  returns  such  bill  to 
11,  11.  the  House,  passing  it  on  to  the  Gov- 
-  Ala.  89.  ernor     with     his     certificate     stating 
^  111.  9,  11.  whether   the   city  has  or  has  not  ac- 
*  Mo.  9,  18.  cepted  the  same.     The  Legislature  may 
®  Cal.  11,  19;  III.  provide    for    the    concurrence    of    the 
^  Ore.  6,  8.  legislative  body  in  cities   of   the  first 
^  Col.  14,  10.  class.     In  both  the  other  classes  the 
^  Col.  Mayor  and  legislative  body  must  act 
^  Ark.  16,  13.  concurrently.     If  a  bill  relate  to  more 
*"  Thus,  the  New  York  Constitution  than  one  city,  it  must  be   sent  to  all. 
divides  cities  into  three  classes :   the  If  it  be  not  accepted  or  returned  with- 
first  class  above  250,000,  the  second  out  acceptance,  it  may,   nevertheless, 
class  above  50,000,  and  the  third  class  again  be  passed  by  both  branches  of 
below    50,000.      All   laws    relating   to  the  Legislature,  and  shall  then  be  sub- 
cities    are    divided    into    general    and  ject  only  to  the  action  of  the  Governor, 
special  city  laws;    general  city  laws  (N.  Y.  12,2.) 

being   those   which   relate   to   all   the  Municipal   elections   must   be   held 

cities  of  one  or  more  classes,  and  special  on  the   Tuesday   succeeding  the  first 

city  laws  those  which  relate  to  a  single  Monday  in  November  in  the  odd  year, 

city  or  to  less  than  all  the  cities  of  a  but  this  does  not  apply  to  cities  of  the 

class.      No   special     city   law   can   be  third  class  nor  to  elections  of  judicial 

passed  except  a  certified  copy  be  sent  officers.     (N.  Y.  12,  3.) 

to  the  Mayor,  and  fifteen  days  there-  "  See  also  §§  435,  536. 


344  THE   STATE   CONSTITUTIONS  [BOOK   III 

law  prescribed.*  So,  in  Colorado  the  county  commissioners,  and  in 
Idaho  the  Legislature,  may  empower  reasonable  maximum  rates  for 
the  use  of  water,  whether  furnished  by  persons  or  corporations.* 
And  in  Texas  the  right  to  regulate  tolls  or  freights,  for  the  use  of 
roads,  bridges,  ferries,  landings,  or  wharves,  shall  always  remain  in 
the  Legislature.^  So,  in  California  the  Legislature  shall  pass  laws 
to  regulate  the  charges  of  telegraph  or  gas  companies,  wharfingers, 
and  warehousemen,  where  there  is  a  public  use.* 

"The  rights  of  no  city  or  town  in  and  to  its  water  front,  wharf 
property,  public  landings,  wharves,  docks,  streets,  avenues,  parks, 
bridges,  and  other  public  places,  and  its  gas,  water,  and  electric 
works  shall  be  sold  except  by  an  ordinance  or  resolution  passed  by  a 
recorded  affirmative  vote  of  three-fourths  of  all  the  members  elected 
to  the  council,  or  to  each  branch  thereof  where  there  are  two,  and 
under  such  other  restrictions  as  may  be  imposed  by  law ;  and  in  case 
of  the  veto  by  the  mayor  of  such  an  ordinance  or  resolution,  it  shall 
require  a  recorded  affirmative  vote  of  three-fourths  of  all  the  mem- 
bers elected  to  the  council,  or  to  each  branch  thereof  where  there  are 
two,  had  in  the  manner  heretofore  provided  for  in  tliis  article,  to 
pass  the  same  over  the  veto.  No  franchise,  lease,  or  right  of  any 
kind  to  use  any  such  public  property  or  any  other  public  property  or 
easement  of  any  description,  in  a  manner  not  permitted  to  the  gen- 
eral public,  shall  be  granted  for  a  longer  period  than  thirty  years. 
Before  granting  any  such  franchise  or  privilege  for  a  term  of  years, 
except  for  a  trunk  railway,  the  municipality  shall  first,  after  due 
advertisement,  receive  bids  therefor  publicly,  in  such  manner  as 
may  be  provided  by  law,  and  shall  then  act  as  may  be  required  by 
law.  Such  grant,  and  any  contract  in  pursuance  thereof,  may  pro- 
vide that  upon  the  termination  of  the  grant  the  plant  as  well  as  the 
property,  if  any,  of  the  grantee  in  the  streets,  avenues,  and  other 

1  Cal.  14,  2;    Ida.  15,  2.     So,   "No  Provided,   That   nothing   herein   con- 
municipal    corporation  sliall,   directly  tained  shall  be  construed  to  prevent 
or  indirectly,  lease,  sell,  alien,  or  dis-  any  such  municipal  corporation  from 
pose  of  any  water-works,  water-rights,  exchanging    water-rights,    or    sources 
or  sources  of    water    supply   now  or  of  water  supply,  for  other  water-rights 
hereafter  to  be  owned  or  controlled  or  sources  of  water  supply  of  equal 
by  it ;  but  all  such  water-works,  water-  value,  and  to  be  devoted  in  like  manner 
rights,  and  sources  of  water  supply  now  to  the  public  supply  of  its  inhabitants." 
owned  or  hereafter  to  be  acquired  by  (Utah  11,  6.) 
any   municipal   corporation,    shall   be         ^  Col.  16,  8;  Ida.  15,  6. 
preserved,  maintained,  and    operated         ^  Tex.    12,   .3.     The  common   law; 
by    it    for    suppljang    its    inhabitants  see  Book  I. 
with    water    at    reasonable    charges :         *  Cal.  4,  33. 


PART   m]  LEGISLATION  345 

public  places  shall  thereupon,  without  compensation  to  the  grantee, 
or  upon  the  payment  of  a  fair  valuation  therefor,  be  and  become  the 
property  of  the  said  city  or  town ;  but  the  grantee  shall  be  entitled  to 
no  payment  by  reason  of  the  value  of  the  franchise;  and  any  such 
plant  or  property  acquired  by  a  city  or  town  may  be  sold  or  leased, 
or,  if  authorized  by  law,  maintained,  controlled,  and  operated  by 
such  city  or  town.  Every  such  grant  shall  specify  the  mode  of  de- 
termining any  valuation  therein  provided  for,  and  shall  make  ade- 
quate provision  by  way  of  forfeiture  of  the  grant,  or  otherwise,  to 
secure  efficiency  of  public  service  at  reasonable  rates,  and  the 
maintenance  of  the  property  in  good  order  throughout  the  term  of 
the  grant.  Nothing  herein  contained  shall  be  construed  as  pre- 
venting the  General  Assembly  from  prescribing  additional  restric- 
tion on  the  powers  of  cities  and  towns  in  granting  franchises  or  in 
selling  or  leasing  any  of  their  property,  or  as  repealing  any  addi- 
tional restriction  now  required  in  relation  thereto  in  any  existing 
municipal  charter."  ^ 

No  franchises  may  be  granted  for  more  than  a  fixed  period  of 
time,  twenty  -  or  thirty  ^  years,  and  there  must  always  be  due  adver- 
tisement and  a  public  bidding.* 

§  606.  Police  Power.  —  Any  county  or  incorporated  city  or  town 
may  make  and  enforce,  within  its  limits,  all  such  local,  police,  sani- 
tary, and  other  regulations  as  are  not  in  conflict  with  its  charter  or 
with  the  general  laws.^ 

*  Va.  125.  6000  population,  and  except  railroads 
2  Ky.  164.  other  than  street  (Ala.). 

*  Ala.  228;  Va.  Of  cities,  etc.,  over        *  Ky. 

'  Cal.  11,  11;  Ida.  12,2. 


346  THE   STATE   CONSTITUTIONS  [BOOK   III 


Tart  IV 

JUDICIAL  SYSTEM 

Article  G5 

§  650.  General  Principles.  —  Nearly  all  States  provide  in  their 
Constitutions  for  the  separation  into  three  departments,  and  all  in 
fact  apply  the  common  law,  though  Louisiana  preserves  its  French 
Code  ^  and  New  Mexico  some  Spanish  law. 

§  651.  Courts.  —  The  system  of  all  the  States  is  substantially 
the  same,  except  that  the  older  States  are  more  apt  to  leave  the 
establishment  of  courts  to  the  Legislature  than  to  prescribe  it  in  the 
Constitution.  Only  seven  States  apparently  still  have  a  separate 
Court  of  Chancery.^  In  many  States,  however,  like  Massachusetts, 
equity  jurisdiction,  though  administered  in  the  Supreme  Court  or 
Superior  Courts,  is  kept  separate  from  the  common  law^;  and 
different  sittings  are  held.  In  other  States  ^  common  law  and  chan- 
cery are  declared  to  be  fused.  Nearly  all  the  States  have  a  Supreme 
Court  and  Superior,  Circuit,  or  District  Courts.  Some  States  * 
interpose  a  Court  of  Appeals  between  the  Superior  Courts  and 
the  Supreme  Court,  while  in  New  York  there  is  a  Court  of 
Appeals  above  the  Supreme  Court.  The  words  "Circuit"  or 
"District"  are  in  some  States  used  for  the  courts  correspond- 
ing to  the  County  Courts  in  other  States,  which  are  below  the 
Superior  Court.  INIost  States  have  a  separate  Probate,  Orphans'  or 
Surrogate's  Court,  but  in  the  West  probate  jurisdiction  is  com- 
monly given  to  the  superior  courts  or  the  county  courts.  There 
are  furthermore  many  city,  municipal,  police,  or  corporation  courts, 
frequently,  in  the  large  cities,  created  by  special  law;  while  in  the 
country  there  are  justices  of  the  peace  or  magistrates  with,  in  the 
West,  minor  jurisdiction  in  civil  cases  not  involving  the  title  to  real 

»  See  §§  76,  200.  '  Cal.,  Ct.,  Ga.,  Ida.,  Mich.,  N.  C, 

=>  Ala.  139;    Del.  4,  1;   Mich.  6,  1;  N.  Y.,  O.,  S.  C.      See  §  671. 

Miss.  152;  N.  J.  6,  1;   Tenn.  6,  1;  Vt.         ■*  Cal.,  Ga.,  111.,  La. 

2,  4.     See,  however,  §  671. 


PART   IV]  JUDICIAL   SYSTEM  347 

estate,  or  in  criminal  cases  not  amounting  to  felony,  but  always  with 
appeal  to  a  higher  court. 

It  might  be  wished  that  the  States  could  adopt  a  more  uniform 
system  or  at  least  adopt  the  same  names;  in  this  book  the  terms 
"Supreme  Court,"  "Superior  Court,"  "County  Court,"  "Probate 
Court,"  "Chancery  Court,"  or  "Justices  of  the  Peace"  have  been 
used  as  typical  names  for  the  system  above  described;  when  there 
is  a  Court  of  Appeals  above  the  Supreme  Court  that  term  is  used. 
In  New  Hampshire  alone  there  are  no  constitutional  pro\isions 
affecting  the  establishment  of  courts,  the  whole  matter  being  left 
to  the  Legislature ; '  while  in  Kentucky,  and  presumably  others,  the 
Legislature  may  establish  no  courts  except  those  provided  in  the 
Constitution.^  A  few  State  Constitutions  provide  that  land  registra- 
tion courts  may  be  established  by  the  Legislature.^  In  the  absence 
of  such  a  provision  it  may  be  questioned  whether  such  courts,  which 
purport  to  deprive  a  land  owner  of  his  title  without  notice  and 
hearing,  are  constitutional  in  States,  or  in  any  case  consistent  with 
the  Fourteenth  Amendment.* 

§  652.  Jurisdiction.  —  The  general  division  of  jurisdiction  has 
been  indicated  above.  When  there  is  a  Court  of  Appeals  above  the 
Supreme  Court,  it  has  only  appellate  jurisdiction,  and  in  most  States 
the  Supreme  Court  has  no  original  jurisdiction  except  to  issue 
habeas  corpus,  mandamus,  prohibition,  certiorari,  procedendo,  quo 
warranto,  injunction,  supersedeas,  and  other  prerogative  or  rem- 
edial writs;  and  in  some  States  it  has  jurisdiction  of  suits  against 
the  State.^ 

In  a  few  States  the  opinion  of  the  Supreme  Court  may  be  required 
upon  important  questions  of  law  and  upon  solemn  occasions  by 
either  branch  of  the  Legislature  or  by  the  governor  and  council.® 
This  practice  of  requiring  opinions  from  the  Supreme  Court  was 
copied  from  the  English  Parliament;  but  it  may  be  questioned 
whether  it  is  advisable  or,  when  required  by  statute,  even  constitu- 
tional. At  all  events  such  opinions  are  not  regarded  as  a  binding 
precedent,  and  being  given  without  the  argument  of  counsel  and 

»  N.  H.  2,  4.  «  Col.    (Amt.)   6,  3 ;    N.  H.   2,  73; 

2  Ky.  135.  Mass.  2,  3,  2;  Me.  6,  3;  R.  I.  Amt.  12. 

'  Fla.  5,  17;   S.  D.  5,  21;   Va.  100.  By  the  Governor,  upon  questions  con- 

*  Tyler  v.  Judges,  175  Mass.  71;  s.  c.  cerning  the   State   Constitution:    Fla. 

179  U.  S.  405.  4,  13 ;   or  concerning  important  ques- 

5  Ida.  5,  10 ;  Neb.  6,  2  ;  N.  C.  4,  9.  tions  of  law  :  S.  D.  5, 13. 
So,  often,  by  statute ;  and  see  §  75. 


348  THE   STATE   CONSTITUTIONS  [BOOK   III 

the  light  that  comes  from  a  real  issue  between  the  litigant  parties  are 
entitled  to  little  more  respect  than  if  given  by  the  judges  in  their 
private  capacities;  indeed  they  have  given  rise  to  a  singular  amount 
of  doubtful  law,  notably  that  in  Massachusetts  upon  a  compulsory 
weekly  payment  law,  and  that  in  Colorado  against  the  eight-hour 
law  in  mines.  ^ 

§  653.  Opinions  on  Appeal.  —  When  a  judgment  or  decree  is 
reversed  or  confirmed  by  the  Supreme  Court,  every  point  fairly  aris- 
ing upon  the  record  of  the  case  shall  be  considered  and  decided,  and 
the  reasons  therefor  shall  be  concisely  stated  in  writing,  signed  by 
the  judges  concurring,  filed  in  the  office  of  the  clerk  of  the  Supreme 
Court,  and  preserved  with  a  record  of  the  case.  Any  judge  dis- 
senting therefrom  may  give  the  reasons  of  his  dissent  in  wTiting  over 
his  signature.^ 

It  shall  be  the  duty  of  the  court  to  prepare  a  syllabus  of  the  points 
adjudicated  in  each  case,  which  shall  be  concurred  in  by  a  majority 
of  the  judges  thereof,  and  it  shall  be  prefixed  to  the  published  reports 
of  the  case.^ 

§  654.  Judges.  —  Generally  speaking,  the  States  have  not 
followed  the  example  of  Massachusetts  and  of  both  the  English  and 
the  United  States  Constitution,  in  making  all  judges  independent 
of  popular  election  and  irremovable  during  good  behavior.  Four 
States  only  still  provide  that  all  judges  shall  be  appointed  by  the 
governor  *  or  by  the  governor  and  council ;  ^  but  a  few  other  States 
require  this  specially  of  the  judges  of  the  Supreme  Court,^  though 
they  must  be  confirmed  by  the  Senate  or,  in  Connecticut,  the 
Legislature.  In  tliree  other  States  Supreme  Court  judges  are 
elected  by  the  two  Houses  of  the  Legislature  in  joint  conven- 
tion,' and  in  the  Territories  and  District  of  Columbia  appointed 
by  the  President  and  confirmed  by  the  Senate.  In  all  the  other 
States  the  judges  of  the  Supreme  Court  are  elected  by  the  people 
of  the  entire  State.  Yet,  in  1798,  none  of  the  States  chose  their 
judges  by  popular  election,  and  in  most  States  their  tenure  was 
for  life  (Smith,  View  of  Constitutions,  p.  33). 

1  Re  Eight-Hour  Law,  39  Pac.  328;  *  Del.  4,  3. 

Op.  Justices,  163  Mass.  589.    See  James  *  Mass.  2,  2,  1,  9;  Me.  5,  1,  8;  N.  H. 

B.  Thayer's  Legal  Essays,  Chapter  2.  2,  45. 

2N.  D.  101;  S.  C.  5,  8;  Utah  8,  25;  «  Ct.   Amt.   26;    Miss.    145;    N.   J. 

W.  Va.  Amt.  1,  5.    See  §  666.  7,  2,  1. 

3  N.  D.   102.     These  provisions,  if  ^  R.  L  10,  4;    S.  C.  5,  2;    Va.  91; 

statutes,    would    hardly    be    constitu-  Vt.  2,  9;   Amt.  10. 
tional. 


PART   IV]  JUDICIAL   SYSTEM  349 

Judges  of  the  Superior  Courts  are  in  all  the  States  except  the 
four  above  mentioned  elected  by  the  people,  though  in  several 
they  are  elected  by  the  Legislature  in  joint  convention/  and  in 
others  appointed  by  the  Governor  and  confirmed  b''^  the  Senate.^ 
And  so  generally  of  the  minor  judges. 

The  terms  of  office  of  judges  vary  from  a  life  tenure  as  in  Massachu- 
setts, New  Hampshire,  and  Rhode  Island,  through  definite  periods 
ranging  from  twenty-one  years  in  Pennsylvania  to  two  years  in 
Vermont;  but  the  usual  term  seems  to  be  six  years  in  the  case 
of  judges  of  the  Supreme  Court,  and  four  years  for  judges  of  the 
Superior  Court,  and  two  years  for  justices  of  the  peace. 

The  Constitutions  usually  provide  that  a  judge  of  the  Supreme 
Court  shall  be  of  a  certain  age,  varying  from  twenty-five  to  thirty-six, 
and  that  he  must  be  a  citizen  of  the  United  States  or  the  State.  A 
few  State  Constitutions  provide  that  he  shall  be  learned  in  the  law ;  ^ 
others  that  he  shall  have  practised  a  certain  number  of  years.  By 
the  Constitutions  of  nearly  all  the  States,  judges  must  receive  a  reg- 
ular fixed  compensation,  but  no  other  fees  or  perquisites;  and  this 
may  not  be  increased  nor  diminished  during  their  term  of  office. 
Four  States  provide  for  the  retirement  of  judges  after  they  have  at- 
tained the  age  of  seventy  years.*  Some  State  Constitutions  prescribe 
that  no  judge  can  sit  in  a  case  where  he  is  interested  or  related  to  the 
parties.^  In  like  manner  a  few  State  Constitutions  provide  that  no 
judge  shall  practise  law  or  act  as  attorney ;  ®  and  that  he  shall  not 
sit  in  appeal  upon  any  decision  made  by  him  or  by  any  Court  of 
which  he  was  at  the  time  a  member,''  or  in  which  he  acted  as 
counsel.^  If  a  judge  absent  himself  from  the  State  for  sixty  days, 
he  forfeits  his  office.*    For  appeals,  see  §  78. 

'  Ga.  6,  3,  2 ;  N.  J.  7,  2,  2 ;  S.  C.  5,  able  his  judgment  would  be  reversed 

13 ;  Va.  96.  upon  appeal. 

2  Fla.  5,  8,  1901,  p.  360;  Miss.  153;  «  Ark.  7,  25;  Cal.  6,  22;  Col.  6,  18; 
N.  J.  7,  2,  1.  Ala.  162;  Kan.  3,  13;  Neb.  6,  14;  N.  Y. 

3  This  principle  was  early  estab-  6,  20;  N.  D.  117;  S.  D.  5,  31;  Va. 
lished  in  England.  See  Historical  105;  Wash.  5,  19;  W.  Va.  8,  16;  Wy. 
Digest,  Book  II.  5,  25. 

*  Ct.  Amt.  12;   Md.  4,  3;   N.  H.  2,        '  Ark.;   111.  6,  11;  Md.  4,  15;  N.  J. 

77;  N.  Y.  6,  12.  6,  2,  5;  N.  Y.  6,  3;   Ore.  7,  6;   S.  C.  5, 

5  Ark.  7,  20;   Del.  4,  16;   Md.  4,  7;  6;  W.  Va.  8,  29;   Utah  8,  13. 
Miss.   165;    N.  D.   100;    Tenn.  6,   11;         «  Ark.;    Md.  4,  7;    S.  C;    Tenn.  6, 

S.  C.  5,  6;  Tex.  5,  11;  Utah  8,  15.  This  11;  Tex.  5,  11;  Utah  8,  13. 
constitutional  provision  seems  hardly         ^  Cal.  6,  9;  Mon.  8,  37.     So  ninety 

necessary,  it  being  the  judicial  duty  of  days,  but  the  governor  may  give  him 

a  judge  in  any  such  case  to  recuse  him-  leave  of  absence  "  in  case  of  extreme 

self;  if  he  were  not  to  do  so,  it  is  prob-  necessity  "  (Utah  8,  27;  Wash.  4,  8). 


350  THE  STATE  CONSTITUTIONS  [BOOK  HI 


Article  GG.    Remedial  Laws 

§  6C0.  Laws  General.  —  All  laws  relating  to  courts  must,  by  a 
few  of  the  Constitutions,  be  general  and  of  uniform  operation.* 
So,  in  several,  the  jurisdiction  of  all  courts  of  the  same  grade  or 
class,  so  far  as  regulated  by  law.^  So,  also,  the  practice  of  such 
courts.^  And  the  effect  of  their  judgments,  decrees,  or  process, 
sliall  be  uniform.* 

§  CGI.  Arbitration.  —  The  Constitutions  of  several  States  provide 
that  the  Legislature  shall  pass  laws  allowing  parties  to  determine 
suits  by  arbitration.^  So,  in  others,  that  the  Legislature  may  estab- 
hsh  "courts  of  conciliation."  *  So,  in  one,  that  they  may  refer  suits 
to  a  practising  lawyer  as  referee.''  But  such  arbitrators,  referees,  or 
courts  may  not  render  final  judgment  obligatory  on  the  parties, 
except  upon  submission  by  the  parties  and  their  agreement  to  abide 
such  judgment.^  So  there  must  always  be  an  appeal  to  the  Supreme 
Court  from  boards  of  compulsory  arbitration.^ 

§  662.  Contempts. ^°  —  The  Legislature  may  regulate  the  exercise 
by  the  courts  of  the  right  to  punish  for  contempt ;  "  in  Oklahoma,  it 
shall  do  so.^"  In  one  it  is  provided  that  the  Legislature  shall  have 
power  to  regulate  by  law  the  punishment  of  contempts  not  committed 
in  the  presence  or  hearing  of  the  courts,  or  in  disobedience  of 
process.*^  Punishment  may  not  extend  to  imprisonment  in  peni- 
tentiary.^* 

"The  Legislature  shall  pass  laws  defining  contempts  and  regulat- 
ing the  proceedings  and  punishment  in  matters  of  contempt:  Pro- 
vided, That  any  person  accused  of  violating  or  disobeying,  when  not 
in  the  presence  or  hearing  of  the  court,  or  judge  sitting  as  such,  any 
order  of  injunction,  or  estaint  (sic),  made  or  entered  by  any  court 

»  Col.  6,  28;  Ga.  6,  9,  1;  Ida.  5,  26;  «  Ind.,  N.  D.,  O.,  Wis.,  Wy. 

111.  6,  29;  Mon.  8,  26;  Neb.  6,  19;  Pa.  »  Mon.  8,  36;  Wy.  5,  28. 

5,  26;  S.  D.  5,  34.     See  §  395.  "  The    origin    of    the    Chancellor's 

^  Col.,  Ga.,  111.,  Neb.,  Pa.  power  to  enforce  the  writ  of  injunction 

^  Col.,  Ga.,  111.,  Neb.,  S.  D.  has  been  fully  discussed  in  Book  I.     A 

*  Col.,  Ga.,  111.,  Neb.,  Pa.,  S.  D.  bill  similar  to  the  Oklahoma   statute 

®  Ala.  84;  Col.  18,  3;   Ky.  250;  La.  has  for  many  years  been  before  Con- 

176;   S.  C.  6,  1;  Tex.  16,  13.  gress. 

«  Ida.  13,  72;  Ind.  7,  19;    Mich.  6,  "  Va.  63. 

23;    N.  D.  120;   O.  4,   19;   Utah   16,  '-  Ga.  1,  1,20;  La.  177;  Okla.  2,  25. 

2;  Wis.  7,  16;   Wy.  5,  1;  19,  1.  '^  Ark.  7,  26. 

'  Fla.  5,  20.  "  S.  C.  1,  19. 


PART   IV]  JUDICIAL   SYSTEM  351 

or  judge  of  the  State  shall,  before  penalty  or  punishment  is  im- 
posed, be  entitled  to  a  trial  by  jury  as  to  the  guilt  or  innocence  of 
the  accused.  In  no  case  shall  a  penalty  or  punishment  be  imposed 
for  contempt  until  an  opportunity  to  be  heard  is  given."  ^ 

§  663.  Attorneys.  —  By  the  Constitution  of  Indiana,  every 
person  of  good  moral  character,  being  a  voter,  shall  be  entitled  to 
admission  to  practise  in  the  courts."  But  in  most  States  they  must 
have  some  education  in  the  law,  or  pass  an  examination. 

§  664.  Codes.  —  (See  also  §  308.)  The  Constitutions  of  a  few 
States  provide  for  codes  of  civil  and  criminal  practice.^  So,  in  three, 
for  codes  of  the  general  laws.*  The  Constitution  of  one  State  pro- 
vides that  no  general  revision  of  the  laws  shall  hereafter  (1850)  be 
made,  and  that,  when  a  reprint  is  necessary,  the  Legislature  shall 
appoint  a  suitable  person  to  collect  such  acts  as  are  in  force  and 
arrange  them  without  alteration.^  But  in  several,  the  Constitution 
provides  that  there  shall  be  a  revision  and  digest  every  ten  years ;  ® 
every  twelve  years,  beginning  with  1902.^ 

§  665.  Speedy  Decisions.  —  The  Constitution  of  California  pro- 
vides that  no  judge  of  the  Supreme  or  Superior  Courts  shall  receive 
his  salary  until  he  make  affidavit  that  no  cause  in  his  court  remains 
undecided  that  has  been  submitted  for  decision  for  the  period  of 
ninety  days.^  So  he  must  decide  all  cases  within  ninety  days  "after 
submission."  ^  So,  in  one  other,  such  judges  must  file  their  decisions 
within  sixty  days  after  the  end  of  the  term  at  which  the  causes  were 
heard,'"  so,  thirty  days,"  or  six  months.'^  And  in  Georgia,  the 
Supreme  Court  must  dispose  of  every  case  at  the  first  or  second 
term  after  the  writ  of  error  is  brought.'^  Every  point  in  the  record 
must  be  decided,  and  the  reason  concisely  stated  in  writing." 

§  666.  Opinions.  —  All  judges  must  state  the  law  and  reasons 
of  their  decisions.'^  Concurring  and  dissenting  opinions  must  not  be 
published ;  '^  in  other  States,  they  may  be.'^    Reports  are  provided 

»  Okla.  2,  25.  "  S.  C.  4,  17. 

2  Ind.  7,  21.  "  Ida.  5,  17. 

3  Ind.  7,  20;  O.  14,  2;  S.  C.  6,  5;       ''-  Okla.  7,  5. 
Wis.  7,  22.  '^  Ga.  6,  2,  6. 

*  Ala.  85;  Ind.;  S.  C.  "  Okla.  7,  5;  Wash.  4,  2.     See  also 

^  Mich.  18,  15.  §  653.     Such  provisions  have  been  held 
^  Mo.  4,  41  (1875) ;  S.  C. ;  Tex.  3,  43    unconstitutional  when  made  by  statute. 

(1879).  1^  Cal.  Nov.  8,  1904;  La.  91;  N.  D. 

■'  Ala.  85.  "  La.  92.     See  also  §  653. 

«  Cal.  6,  24.  "  N.  D.,  Utah. 
»  Wash.  4,  20. 


352  THE   STATE   CONSTITUTIONS  [rOOK   III 

for  by  the  Constitution.'  Judges  must  prepare  a  "syllabus."-  A 
majority  or  quorum  is  necessary  to  any  decision.'  Upon  a  constitu- 
tional question  or  one  involving  State  or  Federal  rights,  the  Supreme 
Court  may  call  for  the  advice  of  the  judges  of  the  Circuit  Court.* 


Article  C7.    Procedure* 

§  670.  Forms  of  Action.  —  In  several  States,  the  Constitution 
provides  that  there  shall  be  but  one  form  of  civil  action." 

§  671.  Equity.  —  (See  also  §  651.)  In  several  States,  the 
Constitution  provides  that  the  Legislature  shall  abolish  tlie  distinc- 
tion betv^een  law  and  equity  proceedings.'  So,  in  two  others,  law 
and  equity  may  be  administered  in  the  same  action.^  And  in 
Georgia,  the  Legislature  may  confer  (and  has  conferred)  upon  the 
common-law  courts  all  the  powers  of  courts  of  equity.^  But  in 
Iowa,  the  Constitution  provides  that  the  law  and  equity  jurisdiction 
(though  often  vested  in  the  same  courts)  shall  be  kept  distinct.'" 
In  two  States,  the  testimony  in  equity  is  to  be  taken  in  the  same 
manner  as  at  law." 

§  672.     Feigned  Issues  are  abolished  by  two  State  Constitutions.'^ 

§  673.  Juries:  Qualifications.  —  (For  religious  qualifications, 
see  §  45.)  The  Constitution  of  Tennessee  provides  that  no  politi- 
cal test  can  be  required  for  jurors;'^  in  New  Hampshire,  that  great 
care  should  be  taken  that  none  but  qualified  persons  should  serve 
on  juries,  and  that  they  should  be  fully  compensated; ''  so,  in  Ver- 
mont, that  great  care  should  be  taken  to  prevent  corruption  or 
partiality  in  the  choice  of  juries.'^ 

§  674.  Disqualifications.  —  By  the  Constitution  of  one  State,  no 
person  can  serve  on  a  jury  who  is  not  a  qualified  elector  of  the  State, 
or  cannot  read  and  write. '^    And  so,  in  others,  the  Legislature  are 

'  La.;    Mon.   8,  32;    N.  Y.   6,  21;  '  Ida.  5,  1;   Mich.  6,  5;   N.  C.  4,  1; 

S.  D.  5,  12;  Utah  8,  23;  Wash.  4,  21.  O.  14,  2;  S.  C.  6,  3. 

-  N.  D.  102;  Utah  8, 26.    See  p.  233,  «  Mon.  8,  28;  Nev.  6,  14. 

n.  14.  »  Ga.  6,  4,  2. 

3  Cal.  6,   2;    Ida.  5,  3;  Mon.  8,  5.  »"  lo.  5,  6. 

N.  D.;  R.  I.  Amt.  12;  Okla.  7,  3;  S.  D.  "  N.  Y.  6,  3;  Wis.  7,  19. 

7,  5;  Utah;  Wy.  5,  5;  Wash.  4,  2.  '^  jja.  5,  1;  N.  C.  4,  1. 

*  S.  C.  5,  12.  "  Tenn.  1,  6. 

=  See  also  §§  137,  535,  and  Arts.  12,  "  N.  H.  1,  21. 

13,  14,  15,  generally.  '*  y^  o,  31. 

«  Ida.  5,  1;   Mon.  8,  28;   N.  C.  4,  1;  '^  ^ligg.  264. 
Nev.  6,  14;   O.  14,  2;   Utah  8,  19. 


PART   IV]  JUDICIAL   SYSTEM  353 

to  pass  laws  excluding  persons  from  serving  on  juries  in  the  same 
cases  in  which  they  are  excluded  from  voting.' 

In  detail,  all  persons  convicted  of  bribery  are  excluded  from 
serving  on  juries."  All  persons  convicted  of  treason;  ^  of  perjury;  * 
of  forgery ;  ^  of  larceny ;  *  generally,  all  persons  convicted  of  in- 
famous crimes;  ^  of  "other  high  crimes  "; ^  all  persons  "under  inter- 
diction." '     Unless  they  are  restored  to  civil  rights.^*' 

§  675.  Charging  the  Jury.  —  Several  State  Constitutions  pro- 
vide that  the  judge  shall  not  charge  juries  as  to  matter  of  fact,"  nor 
comment  thereon,'-  but  they  may  state  the  testimony  and  declare  the 
law.'^  So,  they  shall  declare  the  law.'*  So,  the  judges  of  the  Supreme 
Courts  shall  instruct  the  jury  in  the  law.'^ 

§  676.  Amendments  are,  by  the  Constitution  of  Delaware,  to  be 
allowed  by  the  courts  on  such  terms  as  they  deem  reasonable,  in 
civil  cases.'* 

§  677.  Witnesses :  Parties.  —  The  Constitutions  of  two  States 
provide  that  parties  may  be  witnesses.'^  And  in  one,  that  parties 
may  be  compelled  to  testify  by  the  opposing  party.'^ 

Criminating  evidence  may  be  required  in  bribery  cases,  the 
witness  being  immune.'* 

§  678.  Parties  Deceased.  —  But  in  one  State,  in  actions  by 
executors,  administrators,  and  guardians  in  which  judgment  may 
be  rendered  either  for  or  against  them,  neither  party  shall  be  allowed 
to  testify  against  the  other  as  to  any  transactions  with,  or  statements 
to,  the  intestate,  testator,  or  ward,  unless  called  to  testify  thereto 
by  the  opposite  party  or  required  by  the  Court.'" 

§  679.  Depositions.  —  The  Constitution  of  Delaware  provides 
that  evidence  of  witnesses  aged  or  infirm,  or  about  to  leave  the  State, 
may  be  taken  on  interrogatories;  and,  that  the  courts  shall  have 
power  to  obtain  evidence  from  without  the  State."' 

'  Cal.   20,    11;    Nev.   4,   27;    Tex.       ''  Wash. 

16,  2.  »  Cal.,  Nev.,  S.  C,  Tenn. 

=*  La.  159;  Nev.;  Tex.  '*  Ark.  Wash. 

^  La.  >5  R.  I.  10,  3. 

*  La.,  Nev.,  Tex.  '«  Del.  4,  24.     A   provision   of  this 

*  La.,  Nev.,  Tex.  sort  appears  first  in  the  Mass.  Body  of 
'  Nev.  Liberties,  1641. 

'  La.  '7  Ark.  Sched.  2;  lo.  1,4. 

«  Nev.,  Tex.  "  lo. 

»  La.  >»  La.  184. 

">  Nev.  20  Ark.  Sched.  2. 

"  Ark.  7,  23;  Cal.  6,  19;  Del.  4,  22;       ^i  Del.  4,  24.     See  also  §  124. 
La.  179;  Nev.  6,  12;  S.  C.  5,  26;  Tenn. 
6,  9;  Wash.  4,  16.     See  also  §  132. 

28 


354  TUK   STATE    CONSTITUTIONS  [ROOK    III 

§  CSO.  Limitations.  —  The  I^egislature  has  no  power  to  revive 
any  right  or  remody  wliich  may  have  become  Ijarred  hy  lapse  of 
time  or  any  statute.'  In  Wisconsin,  no  appropriation  can  be 
made  for  any  cUiim  against  the  State,  except  judgments,  unless 
filed  within  six  years  after  the  claim  accrued.'-'  In  Tennessee, 
the  time  between  May  G,  1861,  and  Jan.  1,  1SC7,  shall  not  be  com- 
puted in  any  case  affected  by  the  Statutes  of  Limitation,  nor  shall 
any  writ  of  error  be  affected  by  such  lap.se  of  time.-'  So,  in  Florida, 
as  to  civil  .suits,  the  time  between  Jan.  10,  ISGl,  and  Oct.  25,  18C5.'' 
There  is  no  prescription  against  the  State,  in  civil  matters.^' 

§  681.  Payment  into  Court  may,  by  the  Constitution  of  Delaware, 
be  made  by  the  defendant  at  any  time  pending  an  action  for  debt  or 
damages;  and  the  plaintiff  not  accepting  it  shall  recover  no  costs, 
if  he  recover  no  greater  sum  on  the  final  decision." 

§  682.  Abatement.  —  The  Constitution  of  Delaware  provides 
that  no  action  of  which  the  cause  survives  shall  abate  by  the  death 
of  a  party.' 

«  Miss.   97.     See  also  §  395.  »  La.  193;  Miss.  104. 

=»  Wis.  Amt.  8,  2.  «  Del.  4,  25. 

»  Tenn.  Sched.  4.  ^  Del.  4,  26. 

*  Fla.  15,  3. 


PART   V]  CONSTITUTIONAL   AMENDMENTS  '  355 


Pakt  V 

CONSTITUTIONAL  AMENDMENTS 

Article  99.    Process  of  Amendment 

§  990.  How  Proposed  in  the  Legislature.  —  Amendments  to  the 
Constitution  may,  in  most  States,  be  proposed  in  either  house.^ 
But  in  one,  they  can  only  be  proposed  in  the  senate,  and  only  on 
every  tenth  year,  beginning  with  1880.^  In  one  other,  they  can  only 
be  proposed  in  the  house.^  They  must  be  ratified  by  a  majority 
of  the  members  present  in  each  house,*  or  elected ;  ^  by  three  fifths 
of  the  elected  members  of  each  house ;  ®  by  two  thirds  of  a  quorum  of 
each  house ;  ^  by  two  thirds  of  the  elected  members  of  each  house ;  ^ 
by  a  majority  of  the  elected  members  of  each  house  of  two  successive 
Legislatures ;  '^  by  a  majority  of  the  senators  and  two  thirds  of  the 
representatives,  present  and  voting  thereon,  of  two  successive 
Legislatures;  ^'^  by  a  majority  of  the  elected  members  of  each  house 
and  two  thirds  of  the  members  of  each  house  of  the  next  succeeding 
Legislature ;  "  by  three  fifths  of  the  first  Legislature  and  two  thirds 
of  the  next,  as  in  Tennessee ;  ^^  by  two  thirds  of  the  elected  members 
of  the  first  Legislature,  and  also  of  the  next ;  ^^  by  two  thirds  of  the 
elected  senators  and  a  majority  of  the  elected  members  of  the  house, 
in  the  Legislature  proposing  them,  and  by  a  majority  of  the  elected 

»  Ala.  284;  Ark.  19,  22;  Cal.  18,  1;        »  Ark.;  Mo.  15,  1-2;  Okla. 
Col.  19,  2;   Del.  16,  1;   Fla.  17,  1;  Ga.        «  Ala.;  Fla.;  Ky.;  Md.  14,  1;  Neb. 

13,  1,  1;    Ida.  20,  2;    111.  14,  2;    Ind.    15,  1;  O.;  S.  D. 

16,  1;  lo.  10,  1;  Kan.  14,  1;  Ky.  256;        '  Me.  10,  2;  Miss.  273. 

La.  321;    Mass.  Amt.  9;    Md.   14,  1;        »  Cal.  18,  1;   Col.;   Ga.;   Ida.;   111.; 

Mich.  20,  1;    Minn.  1897,  185;    Mon.  Kan.;      La.;     Mich.;     Mon.;     Nev.; 

19,  9;   N.  D.  202;    Nev.  16,  1;   N.  J.  Amt.  1887,  p.  170;   S.  C;   Tex.  17,  1; 

Art.  9;   N.  Y.  14,  1;   O.  16,  1;   Okla.  Utah;  W.  Va.;  Wash.;  Wy. 

24,  1;  Ore.  17,  1;   Pa.  18,  1;   S.  C.  16,        »  Ind.;     lo.;    N.   D.;    Ore.    17,   1; 

1;    S.  D.  23,  1;    Tenn.   11,  3;    Utah  N.  J.;   N.  Y.;   R.  I.  13,  1;   Va.;  Wis. 

23,  1;   Va.  196;  Wash.  23,  1;   W.  Va.       '°  Mass.  Amt.  9. 

14,  2;  Wis.  12,  1;  Wy.  20,  1.  "  Tenn.  11,  3. 

2  Vt.  Amt.  25,  1.  "  N.  C.  13,  2. 

3  Ct.  Art.  11.  >3  Del.,  Pa. 
*  Minn.  14,  1. 


356  THE  STATE   CONSTITUTIONS  [BOOK   III 

members  of  each  house  of  tlie  next  Legishiturc.'  After  being 
pioposed  as  above,  they  are  to  be  published  and  must  be  ratified 
by  two  thirds  of  each  house  at  tlie  next  Legishiture.^  In  New 
Ibimpshire  tliere  is  no  provision  for  proposing  single  amendments. 

§  991.  Ratification  hij  ike  People.  —  In  all  the  States  except 
Delaware  the  proposed  amendment,  having  passed  the  Legislature 
according  to  §  690,  must  then  be  ratified  by  a  majority  vote  of  the 
people  at  the  next  election,^  or  by  a  three-fifths  vote  at  such  election,* 
or  a  two-thirds  vote.^ 

§  992.  Ratificatio7i  by  the  Legislature.  —  And  in  one  State,  the 
proposed  amendment,  having  passed  both  the  Legislature  and  the 
people  according  to  §§  990,  991,  must  again  be  ratified  by  a  majority 
of  the  elected  members  of  each  house  of  the  next  Legislature  after 
the  election  by  the  people  ratifying  it.®  But  quaere  whether  this 
is  valid. 

§  993.  Restrictions.  —  In  two,  the  Legislature  cannot  propose 
amendments  to  more  than  one  article  in  any  one  session ;  ^  nor  to 
the  same  article  oftener  than  once  in  four  years.^  Not  more  than 
two  ^  or  three '"  can  be  voted  upon  at  the  same  time.  The  same 
amendment  cannot  be  submitted  to  the  people  oftener  than  once  in 
five  years ;  "  once  in  six  years. ^^  Not  more  than  three  can  be  so  sub- 
mitted at  the  same  election.*^  If  two  or  more  are  submitted  at  the 
same  time,  the  electors  must  be  permitted  to  vote  on  each  sepa- 
rately.^* While  an  amendment  approved  by  one  Legislature  is 
awaiting  the  action  of  the  next,  no  other  can  be  proposed. ^^  No 
amendment  shall  relate  to  more  than  one  subject.'® 

§  994.     General  Revision.  —  There  is,  in  most  States,  provision 

for  a  general  revision  of  the  Constitution  by  a  convention  called  for 

that  purpose.     Thus,  whenever  two  'thirds  (or  in  Alabama,  Iowa, 

Kentucky,    Michigan,    Missouri,    New    Hampshire,    New    York, 

Tennessee,  Virginia,  Wisconsin,  West  Virginia,  a  majority;   and  in 

Nebraska,  three  fifths)  of  the  elected  members  of  each  house  of  the 

'  Vt.  »  N.  J. ;  Pa. 

2  Ct.  '2  Tenn. 

^  For  citations,  see  §  990.  "  Ark.,  Kan.,  Mon. 

*  R.  I.     Art.  13.  '«  Fla.  17,  1;  Ga.  13,  1,  1;  Ida,  20,  2 

»  N.  H.  2,  98.  Ind.  16,  2;  lo.  10,  2;  Kan.;  Ky.;  La. 

«  S.  C.  16,  2.  Md. ;  Minn. ;  Mon. ;  Neb. ;  N.  J. ;  N.  D. 

'  Col,    111.,   not   more  than  three,    O.;    Okla.;  Pa.;    S.  C.   16,  2;    S.  D. 

Mon.  Utah;  Wash.;  W.  Va.;     Wis.;  Wy. 

«  111.  '«  Ind. 

»  Ky.  "  Ky. 
»  Mon. 


PART   V]  CONSTITUTIONAL   AMENDMENTS  357 

Legislature  vote  that  such  convention  is  necessary,  the  question  is 
referred  to  the  people ;  if  they  vote  at  the  next  election  '■  for  the  con- 
vention, the  Legislature  is  to  provide  for  holding  the  same.^  In 
Oklahoma  the  Constitution  may  be  revised  at  any  time  if  the  Act 
calling  the  convention  be  approved  by  the  people,  on  a  referendum 
or  upon  an  initiative  petition  therefor.^  And  in  some,  the  question 
of  holding  such  a  convention  is  regularly  submitted  to  the  people  at 
stated  times,  at  a  general  election;  as,  every  ten  years,  beginning 
with  1870;  ^  every  twenty  years,  beginning  with  1916;  ^  with  1871 ; ' 
with  1887;'  every  sixteen  years,  beginning  with  1866;^  every  seven 
years.  ^  The  delegates  to  such  constitutional  convention  are,  in  all 
these  States,  to  be  elected  by  the  people.  They  must  be  double  the 
number  of  the  Legislature,'"  or  the  same  as  the  House,"  or  thrice  the 
Senate,  and  fifteen  at  large.'-  Such  provisions  are  interesting,  but 
frequently  not  effective.  One  generation  can  hardly  bind  the  next, 
even  to  vote  upon  a  new  Constitution ;  if  the  Legislature  fail  to  set 
the  machinery  in  motion,  nothing  can  be  done. 

§  995.  Ratificatiofi.  —  The  Constitution,  as  so  amended  by  the 
convention,  must  then  be  ratified  by  the  people  at  a  general  election  ;'^ 
at  a  special  election  called  for  the  purpose."  In  others,  apparently, 
it  goes  into  effect  at  once. 

§  996.  Amendments  to  the  United  States  Constitution  may  not, 
by  the  Constitutions  of  Florida  and  Tennessee,  be  ratified  by  any 
convention  or  assembly  (Legislature)  of  the  State  which  was  not 
elected  after  such  amendment  was  submitted.'^ 

*  The  popular  vote  for  the  conven-  *  lo. 

tion    must   equal    one-fourth    of   that  *  N.  Y. 

thrown  at  the  last  election  (Ky.).  *  O.  16,  3. 

-  Ala.  286;    Cal.  18,  2;    Col.  19,  1;  '  Md.  14,  2. 

Del.  16,  2;    Fla.  17,  2;    Ga.  13,  1,  2;  *  Mich. 

Ida.  20,  3;    111.  14,  1;    lo.  10,  3;    Kan.  »  N.  H.  2,  98,  99  (beginning  1903). 

14,  2;    Ky.  258  (by  a  majority  of  two  *"  Ida.,  Wy. 

successive  houses);   Me.  4,  3,  15;  Mich.  "  Mon.,  Utah.,  Wash. 

20,  2;    Minn.  14,  2;    Mo.  15,  3;    Mon.  "  n   Y. 

19,  8;    N.  C.  13,  1;   Neb.  15,  2;    Nev.  »*  Md.;   Neb.;   O.;   W.  Va.  14,  1. 

16,2;  N.  H.  2,  98;  N.  Y.  15,  2;  0.16,  '^Cal.;   Col.;    Ida.  20,  4;    111.;   Mo.; 

2;    S.  C.  16,  3;    S.  D.  23,  2;    Tenn.;  Mon.;     N.    Y.;     Utah   23,   3;     Wash. 

Utah  23,  2;    Va.   197;    Wash.  23,  2;  23,  3;  Wy.  20,  4. 

W.  Va.  14,  1;  Wis.  12,  2;   Wy.  20,  3.  **  Fla.  16,  19;  Tenn.  2,  32. 

»  Okla.  23,  2  &  3. 


INDEX 


ABATEMENT,  of  Actions,  III,  §  6S2. 
ACCUSED   PERSONS, 

not  to  give  criminating  evidence.  III,  §  136. 

of  crime,  to  hear  cause,  etc.,  pp.  18,  19,  21,  77;  III,  §§  120,  123. 

right  to  counsel,  p.  76;  III,  §  134. 

witnesses,  evidence,  p.  76;  III,  §  135. 
ACT  OF   SETTLEMENT,  ANNE,  pp.  3,  46,  oO,  76-89;  III,  §  102  n.  10. 
ACTIONS, 

equity  and  common  law  mixed,  §  671. 

for  death,  survive,  III,  §  535. 

one  form  of.  III,  §  670. 
ACTON   BURNEL,  Statute  of,  p.  93. 

"ADMINISTRATIVE   LAW,"  does  not  exist  with  us,  pp.  l"l,  16. 
ADMINISTRATORS    AND    EXECUTORS,  may  not  invest  in  corporate  se- 
curities, p.  70;  III,  §§  424,  509. 
ADMIRALTY  JURISDICTION,  early  jealousy  of,  pp.  14,  98. 
ADOPTING   CHILDREN,  special  laws  forbidden.  III,  §  395. 
AFFIRMATIONS,  III,  §  47. 
AGE   OF   CONSENT,  in  women,  III,  §  431. 

AGRICULTURAL  CORPORATIONS  (See  Corporations),  III,  §  502. 
AGRICULTURE, 

regulating,  special  laws  forbidden.  III,  §  395. 

State  Commissioner  of.  III,  §  202. 

State  may  not  engage  in.  III,  §  6. 
ALFRED,   LAWS   OF,  p.  13. 
ALIENS  {See  Mongolians), 

general  provisions  against.  III,  §  22. 

rights  of,  III,  §  102. 

voting  rights,  §  240 ;   labor  of,  §  464. 
ALLEGIANCE,  to  U.  S.,  Ill,  §  191. 
ALLODIAL  TENURE  {See  Land). 
AMENDMENTS, 

in  actions,  to  be  allowed.  III,  §  676. 

of  laws,  etc.  {see  Legislation,  Constitutions). 
AMENDMENTS  OF  CONSTITUTIONS, 

frequent,  III,  §  1   {see  Preface). 

how  proposed,  §  990;     ratified  by  people,  §§    991,  995;    by  legislature, 
§§  990,  992;    restrictions  and  form  of,   §    773;    new  Constitutions  by 
convention,  §  994. 
APEXING,  law  of,  new,  p.  71. 
APOLOGY,  form  of,  p.  103. 


360  INDEX 

APPEAL  (See  Wiut  of  Error), 

constitutional  rif^ht  to,  in  all  causes,  III,  §  78,  137,  139,  145. 

to  governinent  in  criminal  cases,  ill,  §  137  n. 
APPRENTICES,  allowed.  111,  §  32. 

APPROPRIATION,  Constitutional  doctrine  of,  of  moneys,  III,  §  320,  n. 
APPROPRIATION   BILLS,  form  and  passage  of,  III,  §§  301,  311,  312,  313. 

APPROPRIATIONS, 

purposes,  etc..  Ill,  §§  311,  312. 

required  before  money  paid  from  treasury,  §  320;    not  lonn;cr  than  two 
years,  §  320;   virements  forbidden,  p.  37;   III,  §§  31G,  320;    not  in  excess 
of  taxes,  ib.;  private,  §  322;    charitable  and  sectarian,  §  323;    internal 
improvements,  §§  324,  326;   immigration  forbidden,  §  325;  war,  §S  320, 
325;    loans  of  credit,  §  326;   for  buying  stoclc  or  bonds,  ib.;  disburse- 
ment of  State  funds,  §§  328,  680. 
AQUEDUCTS,  land  may  be  taken  for,  III,  §  92. 
ARBITRARY  POWER,  forbidden  to  government,  p.  51;    III,  §  182. 
ARBITRATION  (See  Labor), 

compulsory  on  mining  or  public  service  corporations,  III,  §  508. 

provision  for,  in  labor  cases.  III,  §§  565,  661. 
ARMIES  (See  Standing  Armies),  in  America,  pp.  42,  43,  67,  83. 
ARMS,  right  to  bear  (See  Martial  Law,  Standing  Army),  pp.  42,  43,  82,  83; 

III,  §  62. 
ARMY   AND  NAVY,  rights  of,  to  vote,  etc..  Ill,  §  243. 
ARREST,  cause  of,  to  be  told  (see  Bail,  Indictment),  pp.  18,  19. 
ARREST  AND   SEARCH  (See  Search  Warrants),  HI,  §  71. 
ARREST,   FREEDOM   OF, 

electors.  III,  §  237;  legislators,  p.  49,  §  273. 
ARTISANS'    LIENS,  no  exemption  from.  III,  §  81. 
ASSEMBLY,  right  of,  pp.  43,  49,  86,  102;  III,  §  64. 
ASSESSMENT  (See  Taxation). 

ASSISTANCE,  writs  of  (See  Search  Warrants),  III,  §  71  n. 
ASSIZES,  under  Magna  Carta,  p.  17. 
ATHEISTS,  disqualified  for  office.  III,  §  45. 
ATTACHMENTS,  property  exempt  from,  III,  §  81. 
ATTAINDER,  bills  of,  forbidden,  pp.  23,  50,  79,  101;   III,  §§  138,  142. 
ATTAINT  (See  Corruption  of  Blood). 

of  juries,  for  finding  verdict  against  evidence.  III,  §  131. 
ATTORNEYS   AT   LAW,  qualifications  for,  p.  98;  III,  §  663. 
ATTORNEY-GENERAL,  in  States,  III,  §  202. 
AUDITOR,  in  State  governments,  III,  §  202. 


B 

BAIL,  right  to,  not  excessive,  etc.,  pp.  20,  22,  77,  78;  III,  §  122. 

BAILABLE   OFFENCES,  III,  §  121. 

BAKERS,  statute  of,  p.  93. 

BALLOT,  votes  by  (see  Elections),  p.  49;  III,  §  231. 

BANISHMENT  (See  Transportation),  forbidden,  pp.  18,  22,  78. 

BANKRUPTCY, 

Federal  power  over,  p.  62. 

in  England,  laws  against,  p.  101. 


INDEX  361 

BANKS, 

creating,  special  laws  forbidden.  III,  §  39.5. 

must  have  office  in  State,  §  507;  creation  of,  §  ooO;  banknotes  and  money, 
§  551-553;    insolvency  of,  §  554;  liability  of  stockholders,  §  555;  interest 
allowed  to,  §  556;  duration  of  charters;  §  557;    reports,  §  559;   State 
examiner  of,  §  202. 
State  {see  Corporations),  p.  71;  III,  §§  502,  550-559. 
BARRATRY,  made  criminal,  III,  §  155. 
BETTERMENTS, 

not  to  be  counted,  in  land  takings.  III,  §  95. 
taxation  for,  allowed,  pp.  37;   III,  §  343. 
BETTING   ON    ELECTIONS,  cause  of  disfranchisement,  III,  §  255. 
BIBLE,  prohibited,  to  women,  etc.,  pp.  101,  102. 
BIGAMY  (See  Polygamy),  p.  92. 

BILL  OF  RIGHTS  (See  also  Declaration  of  Rights),  pp.  3,  21,  22,  37,  75-89. 
of  the  States,  pp.  69-70;  III,  §§  3-165. 
Civil,  III,  §§  10-103. 
construction  of,  III,  §  5. 
criminal,  III,  §§  120-165. 
irrepealable,  III,  §  4. 
BILLETING   SOLDIERS,  forbidden,  p.  82;  III,  Art.  29. 
BILLS  (for  laws,  see  Legislation). 
BILLS   OF   ATTAINDER,  etc.  (See  Attainder,  etc.). 
BLACKLISTS  (See  Labor),  prohibited.  III,  §  458. 
BOARDS  (See  Commissions). 
BODY   OF   LIBERTIES  (See  Massachusetts). 
BONDING   OF   CITIES,  special  laws  forbidden.  III,  §  395. 
BOYCOTTS,  laws  against,  p.  27;  III,  §  459. 

BRIBERY,  a  felony  (see  Office,  Suffrage),  III,  §§  152,  254,  674,  677. 
BRIDGES, 

special  laws  forbidden,  III,  §  395. 
tolls  may  be  regulated.  III,  §  605. 
BUSINESS  CORPORATIONS  (See  Corporations). 
BY-LAWS,  unlawful,  of  guilds,  p.  100. 


CABINET,  English,  not  in  Constitution,  p.  9. 
CADE,  JACK,  rebellion  of,  pp.  11,  19,  27,  99. 
CANAL   BOARD,  in  States,  III,  §  202. 
CANAL  COMPANIES, 

are  carriers,  §  521;  rates  may  be  fixed,  §  522;  connections,  §  526. 

must  have  office  in  State,  III,  §  507. 
CANON    LAW  (See  Roman  Law), 

in  England,  pp.  6,  11,  12,  90. 
CAPITAL   OFFENCES, 

general  provisions  concerning,  pp.  76,  79. 

not  bailable.  III,  §  121. 
CARDINAL   RIGHTS  (See  Individual  Rights),  pp.  10,  67,  75. 
CARRIERS  (See  Railroads). 
CARTER,  JAMES   C,  quoted,  pp.  3,  4,  72. 
CATTLE,  provisions  for  health  of.  III,  §§  437,  440. 


362  INDEX 

CEMETERIES,  special  laws  forbidden,  III,  §  395. 

CENTRALIZATION  {See  States,  Rights  of;  Federal  and  State  Power). 

CHALLENGES,  of  voters  {see  Suffrage). 

CHANCERY, 

contempts  of  injunctions,  p.  72;  III,  §  GG2. 

courts,  separate  in  a  few  States,  III,  §§  Gol,  G71. 

jurisdiction,  history  of,  pp.  11,  12,  14,  24-29,  72,  94-9G;  III,  §  247. 
CHARGES  (See  Rates,  Trial  by  Jury). 
CHARITABLE    INSTITUTIONS,  require  special  vote  of  Legislature,  III,  §  59. 

corporations  (see  Corporations),  election  of,  III,  §  502. 
CHARITABLE   USES  (<See  Mortmain). 
CHARITIES,  State  Boards  or  Commissioners,  III,  §  202. 
CHARTERS  {See  Magna  Carta,  etc.). 

municipal,  may  be  framed  by  inhabitants,  III,  §  601. 
CPIARTERS   OF   LIBERTIES,  Hen.  I,  Hen.  II,  pp.  14,  90. 
CHILD   LABOR  (See  Labor),  provisions  against.  III,  §  455. 
CHILDREN, 

custody  of,  in  husband  or  wife,  III,  §  27. 

legitimating  any,  special  laws  forbidden,  III,  §  393. 
CHINESE  (See  Mongolians). 

CHRISTIANITY  {See  Religious  Rights)  part  of  the  common  law,  p.  36. 
CHURCH, 

compulsory  support  of,  forbidden,  III,  §  42. 
allowed,  III,  §  44. 

established,  none,  p.  101;  III,  §§  43,  44. 

not  to  be  chartered,  III,  §  43. 
CHURCH    LAW,  Courts  {see  Canon  Law). 
CITIES  AND    TOWNS   (See  Municipal  Corporations). 

general  law  for  charters,  p.  72;  III,  §  600. 

taxation  of,  §§  340-346;  debts  of,  §§  370-374  (see  Debts). 
CITIZENS, 

may  unite  to  resist  illegal  tax,  etc.,  Ill,  §  603. 

who  are,  p.  76;  III,  §  100. 
CIVIL   LAW  (See  Roman  Law). 
CIVIL  RIGHTS  (See  Cardinal  Rights). 

common  to  all,  in  States,  III,  §§  20,  21,  183. 

of  laborers  and  employees,  III,  §  506. 
CIVIL   WAR, 

acts  done  during,  no  liability.  III,  §  157. 

debts  incurred  in.  States,  etc.,  not  to  pay,  III,  §§  325,  364. 
CLARENDON,  Constitutions  of,  pp.  12,  90. 

CLASS  LEGISLATION  {See  Civil  Rights,  Equality,  Privilege),  pp.  41,  72. 
CLOTHS,  Statute  of,  p.  95. 
CODES  (See  Legislation). 
CODES  of  the  law,  provided  for.  III,  §  664. 
COKE,  disgraced,  p.  104. 
COLOR  (See  Race  Distinctions). 
COMBINATIONS  (See  Corporations,  Trusts). 
COMMERCE  (See  Trade),  rights  of,  pp.  31,  32. 
COMMISSIONS  (See  Corporation,  Railroad). 

commissioners,  objected  to  in  England,  pp.  15,  45,  80. 

in  municipal  government,  forbidden.  III,  §  600. 

in  U.  S.,  p.  53. 


INDEX  363 

COMMONS,  House  of,  power  to  legislate  (see  Parliament),  p.  94. 
COMMON   CARRIERS  (See  Rates,  Railroads), 

rates  of,  fixed  by  law  in  1691,  pp.  6,  38. 

who  are.  III,  §  521. 
COMMON    LAW  (See  Law),  always  required,  pp.  11,  15,  26,  79,  98;   III,  §  70. 

right  to,  preserved,  pp.  72,  80;  III,  §  76. 

COMMON    PLEAS,  to  be  held  locally  (see  Courts),  p.  17. 
COMMON   SCHOOLS  (See  Schools). 
COMMUNISM,  may  be  unconstitutional,  p.  61. 
COMMUTATIONS  OF   SENTENCE  (See  Pardons). 

COMPETITION,  right  to  (see  Trusts,  Railroads,  etc.),  Ill,  §  580. 

provisions  for  among  corporations  III,  §§  510,  518. 
COMPTROLLER,  in  States,  III,  §  202. 

CONCEALED   WEAPONS,  may  be  forbidden  (see  Arms),  III,  §  62. 
CONFIRMATION   OF  CHARTERS,  Edw.  I,  pp.  3,  37,  93. 

excepted  out  of  general  powers  of  government.  III,  §  4. 
CONFISCATION  (See  Forfeiture). 
CONGRESS,  sessions  of,  p.  44. 

CONSCIENCE,  rights  of  (see  Religion),  III,  §§  4,  40. 
CONSOLIDATION  (See  Corporations,  Railroads,  Trusts). 
CONSPIRACIES  (See  Boycotts,  Trusts),  eariy  law,  pp.  93-95. 
CONSTITUTION,  American  (See  Federal),  pp.  75-89;  III,  §  3. 

English,  pp.  1,  8-9. 

Federal,  continuation  of  English,  6-8,51;   III,  §  3;  liistory  of  adoption, 
pp.  68,  69. 

how  guarded,  p.  92. 

supreme,  §  190;  "unwritten,"  p.  6. 
CONSTITUTIONAL  GOVERNMENT,  defined,  III,  §  182  n. 

CONSTITUTIONS,  State,  pp.  68-72 ;  III. 

division  of,  III,  §  1. 

extend  previous  laws.  III,  §  77. 

how  amended,  pp.  57,  59;  III,  Art.  99. 

mandatory  or  self-executing,  III,  §§  2. 

no  veto  of  amendments  to,  §  304. 

territories  becoming  States,  irrevocable  provisions.  III,  §  51. 
CONTEMPTS, 

punished  by  legislatures,  p.  49. 

regulated  by  law,  etc.,  pp.  20,  26,  28;  III,  §§  124,  662. 
CONTRACT, 

freedom  of,  discussed,  pp.  33-35. 

obligation  of,  clause  discussed,  p.  62;  in  States,  III,  §  393. 
"CONTRACTING  OUT,"  forbidden,  as  to  employees,  etc.  (see  Labor),  III, 

§§  534,  535. 
CONTRACTS,  obligation  of,  etc.,  pp.  62,  79. 
CONVEYANCES, 

public,  open  to  all.  III,  §  21. 

to  be  recorded,  III,  §§  406,  420. 

CONVICTS  (See  Prison  Labor),  letting  by  contract,  work  on  roads,  etc., 

Ill,  §  140. 
COOLIES  (See  Slavery). 

CO-OPERATIVE  ASSOCIATIONS,  III,  §  571. 
CORN   LAWS,  early,  p.  99. 


364  INDEX 

CORPORATION   COMMISSION  {See  Corporations,  State,  etc.). 

created,  III,  §§  202,  525,  532. 

powers  of,  §§  502,  512. 
CORPORATIONS  {See  Banks,  Railroads,  Tklkgraph  Companies,  Munici- 
pal Corporations), 

alien,  when  majority  of  stock  owned,  III,  §  102. 

books  and  papers,  no  immunity  to  produce,  III,  §  136. 

bribery  by,  forfeits  charter.  III,  §  222. 

changing  name  of,  special  laws  forbidden.  III,  §  395. 

creating,  special  laws  forbidden.  III,  §  395. 

earliest  in  England,  pp.  103,  104. 

employees  of,  may  not  hold  office.  III,  §  222. 

franchise,  may  be  taken  in  eminent  domain.  III,  §  97. 

general  law  of,  pp.  38,  39,  103. 
CORPORATIONS,  State  Constitutional  Provisions,  III,  §§  500-580. 

bonds  and  stock  of,  trustees  may  not  invest  in,  §  509. 

bonds,  issue  of,  §  513. 

charters  {see  below.  Creation  Franchises),  §§  502,  504. 

consolidation  of,  combinations,  etc.,  §  518. 

control  of,  by  State,  §  501. 

creating,  special  laws  forbidden,  III,  §  395. 

creation  of,  §§  502,  503. 

definition  of,  §  500;    employees,  rights  of,  §  506;    existing  corporations, 
§  504. 

directors,  liability  of,  §  511. 

dissolution  of,  §§  503,  515. 

exclusive  privileges,  §  501. 

fares  {see  Rates).     Foreign  corp>orations,  §§  501  n.,  505,  507,  508. 

forfeiture  of  charter,  etc.,  §  501. 

franchises,  subject  to  control,  may  be  forfeited,  etc.,  §§  501-503. 
may  not  be  aHenated,  §  517. 

freights  {see  Rates),  general  principles,  regulation  of,  p.  71;  §  501. 

land,  holdings  of  by,  §  516;  land  companies,  forbidden,  §  403  n. 

license,  of  foreign  companies,  §  501  n. 

mining  companies,  must  arbitrate,  §  508;  taxation  of,  §  330. 

miscellaneous  companies,  §§  570,  571. 

objects  of,  §  502;  office  in  State,  etc.,  §  507. 

pohce  power,  supreme,  §§  501,  506;  public  service,  §§  505,  508. 

rates  {see  Railroads,  etc.),  §  503;  fixed  by  State,  §  522. 

repeal  of  charters,  etc.,  §  503;  renewal  of,  §  504. 

retrospective  laws  concerning,  forbidden,  §  502. 

stock,  provisions  regulating  issue  of,  §  512. 
increase  of,  or  decrease,  §  513. 
preferred,  §  514. 

stockholders,  liability  of,  p.  70;  §  509. 

suits  by  and  against,  §  508. 

taxation  {see  Taxation),  §§  519,  330  n. 

tolls  {see  Rates). 

ultra  vires,  §§  506,  516. 

votes,  voting,  at  elections,  §  510. 

vi^harfage  {see  Rates). 
CORRUPT   LEGISLATION,  offence  of  {see  Lobbying),  III,  §  154. 
CORRUPTION  IN  OFFICE  (See  Corrupt  Legislation,  Bribery),  III,  §  218. 
CORRUPTION   OF   BLOOD,  none  in  United  States,  p.  79;  III,  §  142. 
COSTS  (See  Fees  and  Costs,  Fines). 
COSTS,  not  to  be  excessive,  III,  §  140. 


INDEX  365 

COUNCIL,   ENGLISH,  powers  of,  etc.,  p.  11. 
COUNCIL,  in  States,  III,  §§  202,  281;  of  the  Realm,  pp.  37,  48. 
COUNSEL,  right  to  (see  Accused  Persons),  p.  23;    III,  §  134. 
COUNTIES  (See  Municipal  Corporations), 

government  of,  III,  §§  GOO,  GOl. 

special  laws  forbidden,  III,  §  395. 

taxation  of,  §§  340-34G,  debts  of,  §§  370-375  (see  Debts). 
COUNTY   COURTS,  in  England,  p.  48. 
COUNTY   SEATS,  special  laws  forbidden,  III,  §  395. 

COURTS, 

general  system  of,  in  States,  III,  §  651. 

laws  relating  to  must  be  general,  III,  §  6G0. 

local,  right  to  trial  in  (see  Venue),  pp.  12,  13,  17,  76,  78,  81;  III,  §  130  n. 

to  be  open,  III,  §  70. 

CREDIT,  loans  of,  by  States,  cities,  etc.  (see  State.  Debts,  Tax,  etc.). 

CRIMES,  (See  Accused  Persons,  Bribery,  Perjury,  etc.). 
injunctions  against,  p.  27. 

CRIMINAL  CASES, 

pleas  of  the  Crown,  in  King's  Courts,  III,  §  130  n. 
special  laws  forbidden,  III,  §  395. 

CRIMINATING   EVIDENCE  (See  Accused  Persons),  pp.  45,  46,  78;    III, 
§§  136,  677. 

CRUEL    AND    UNUSUAL    PUNISHMENTS    FORBIDDEN  (See  Punish- 
ments), III,  §  140. 

CUMULATIVE   VOTING,  allowed,  in  corporations.  III,  §  510. 

CUSTOM,   CUSTOMS  (See  Liberty,  Labor,  Law,  right  to,  Common  Law). 


D 

DAMAGES  (See  Labor), 
for  death,  III,  §  535. 
DAMS,  special  laws  forbidden.  III,  §  395. 
DAWES   ACT,  of  United  States,  p.  19. 

DEBTORS,  property  of,  exempt  (see  Exemption),  III,  §§  81,  88. 
DEBTS  (for  State  Debts,  see  State;   see  also  Debtors,  Garnishment,   Im- 
prisonment FOR  Debt,  Stay  Laws,  Tax,  Taxation,  etc.). 
collection  of,  special  laws  forbidden,  III,  §§  315,  395. 
of  counties,  cities,  towns,  school  districts,  or  other  municipal  corporations, 

III,  §§  344,  345. 
of    Bills   for,  two-thirds  vote,  §  315;    loans  of    credit,   etc.,    §§  316,  324, 
326,  345;   exceptions,  §  346;    purposes  of  debt,  §  370;  amount  limited, 
§  371;    referendum  on,  §  372;    payment  of,  sinking  funds,  etc.,  §  373; 
liability  of  private  property  for,  §  374;   bonds  when  valid,  §  375. 

DECISIONS  OF  JUDGES,  time  required  for.  III,  §  666. 

DECLARATION  OF  INDEPENDENCE,  pp.  15,  16,  17,  21,  22,  32,  38,  42,  47, 

50,  76-89;  III.  §§  3,  51. 
DECLARATION   OF   RIGHTS   (See  also  Bill  of  Rights), 
of  the  States,  III,  §§  1-165. 

DE   DON  IS,  statute,  p.  93. 

DEEDS,  invalid,  special  laws  forbidden,  III,  §  395. 


366  INDEX 

DEFAMATION  (See  Libel). 

DEFECTIVE   MACHINERY   (See  Labor,  Damages),  knowledge  of,  etc.,  Ill, 

§  535. 
DEODANDS,  abolished,  III,  §  144. 

DE  ODIO   ET  ATIA,  writ  of,  pp.  19,  77,  92;  III,  §  125. 
DEPOSITION,  witnesses  may  give,  and  be  set  at  large.  III,  §§  124,  G79. 
DESCENT,  special  laws  forbitlden,  III,  §  395. 
DIRECTORS  (See  Corporations). 
DISCRIMINATION  (See  Railroads),  general  constitutional  provisions  against, 

III,  §  435. 
DISFRANCHISEMENT  (See  Suffrage). 
DISPENSARY   SYSTEM  (See  Liquor). 
DITCHES,  corporations  for  (see  Corporations),  III,  §  502. 

special  laws  forbidden.  III,  §  395. 
DIVORCE, 

Legislature  may  not  grant,  etc.,  p.  71;  III,  §  430. 

special  laws  forbidden,  III,  §  395. 
DOMESDAY   BOOK,  laws  of,  p.  13. 
DRAINS,  general  system  provided  for,  III,  §  418. 
DRAINAGE,  special  laws  forbidden,  III,  §  395. 

works  for  a  public  use,  land  taken  for,  III,  §§  91,  92,  415. 

corporations  for  (see  Corporations),  III,  §  502. 
DRAWBACKS,  forbidden  (see  Railroads). 
DROIT   D'AUBAINE,  abolished,  p.  93. 

DUELLING,  forbidden  (see  Office,  Suffrage);  III,  §§  151,  253. 
f'DUE   PROCESS   OR  COURSE   OF   LAW," 

in  the  English  Constitution,  history  and  meaning  of,  pp.  16,  21,  30,  75,  96. 

in  the  State  Constitutions,  pp.  16,  76,  77,  81;  III,  §§  70,  130. 
DUTIES,  complained  of  in  early  times,  pp.  93,  99. 


E 

EDUCATION, 

general  right  to,  p.  45;  III,  §  50. 
superintendent  of.  III,  §  202. 
EDUCATIONAL  CORPORATIONS,  creation  of    (See    Corporations),    III, 

§  502. 
EDUCATIONAL    INSTITUTIONS, 

qualifications  for  voting  (see  Suffrage),  III,  §  245. 
require  special  vote  of  Legislature,  III,  §  59. 
EDWARD  THE  CONFESSOR,  laws  of,  p.  13. 
ELECTIONS, 

general  provisions  concerning,  III,  §§  230-248. 
of  legislature,  governor,  etc..  Ill,  §§  203,  210. 
purity  of,  bribery,  etc..  Ill,  §  152. 
special  laws  forbidden.  III,  §  395. 
to  be  free,  open,  etc.,  pp.  44,  87,  92,  103;  III,  §  230. 
votes  by  ballot,  §  231;  voting  machines  allowed,  i6. ;  secrecy  of  ballot,  tb., 
§    235;    plurality  vote  sufficient,  §  232;   Australian  ballot,  §  233;  cumu- 
lative voting,  ib.;    ejection  day,   §   234;    conduct  of  elections,   §  235; 
registration  laws,   §  236;  freedom  from  arrest,  §  237. 
ELECTORS, 

contests  of  elections,  §  238;    suffrage,  §  240  (g.  v.);    municipal  elections, 

§  249;  states  control,  p.  67. 
presidential,  how  chosen,  III,  §  217. 


INDEX  367 

ELECTRIC  COMPANIES  (See  Corporations);    rights  in  streets,  III,  §  535. 

ELEVENTH   AMENDMENT,  U.  S.  Const.,  p.  63. 

EMBEZZLEMENT,  of  public  funds,  criminal  (see  Office),  III,  §§  15G,  328. 

EMERGENCY,  in  legislation,  defined.  III,  §  308. 

EMIGRATION,  right  of,  pp.  18,  75,  97;  III,  §  G5. 

EMINENT   DOMAIN,  general  principles,  pp.  36,  83,  84;  III,  §§  90-97,  330. 

by  corporations  (see  Railroads,  Telegraph  Companies,  etc.). 

not  by  foreign,  §  505. 
EMPLOYER   AND   EMPLOYEE  (See  Labor,  Railroads). 
ENGINEER,  state.  III,  §  202. 

ENGLISH   STATUTES,  in  force  in  States,  III,  §  76. 
ENGROSSING  (>See  Forestalling). 
ENTAILS  (See  Land),  forbidden,  III,  §  402. 
EQUAL   RIGHTS  {See  Civil  Rights,  Equality,  Class  Legislation),  p.  90; 

III,  §  20. 
EQUALITY, 

men  born,  etc.,  pp.  16,  42;  III,  §  10.  11. 

under  the  law,  pp.  16,  41,  80,  90;  III,  §§  20,  183. 
EQUITY  (See  Chancery). 

ERROR,  writ  of  (see  Writ),  given  in  all  cases,  III,  §  139. 
ESCHEAT  (See  Land),  III,  §§  400,  401. 
EVIDENCE  (See  Accused  Persons,  Witnesses,  Oaths),  pp.  76-78. 

special  laws  forbidden.  III,  §  395. 
EXCLUSIVE     PRIVILEGES,    (see    Monopoly,    Class    Legislation),    III, 

§§  16,  501. 
EXECUTION, 

property  exempt  from  (see  Exemption),  III,  §  81. 

special  laws  forbidden.  III,  §  395. 
EXECUTIVE, 

in  States  (see  Governor,  etc.),  Ill,  §  202. 

powers  of  (see  King,  President,  Governor),  pp.  48,  53;   III,  §§  231,  280. 
EXECUTORS  (See  Administrators),  may  not  invest  in  stocks  or  bonds.  III, 

§426. 
EXEMPTION,  of   property    from    attacliments    or    executions,    p.    22;    III, 

§§81,  82. 
EXPORTS,  early  forbidden,  pp.  95-99. 
EX   POST   FACTO   LAWS,  forbidden,  p.  79;  III,  §  141. 
EXPRESS   COMPANIES,  are  common  carriers,  III,  §  521. 

rates  may  be  fixed,   §  522;    discrimination,   §  524;    subject   to    railroad 
commissions,  §  532. 
EXTORTION,  forbidden,  pp.  38;  III,  §  524. 


F 

FACTORIES  (See  Labor). 

FACTORY   ACTS  (See  Labor). 

FARES  (See  Corporations,  Railroads). 

FEDERAL   AND   STATE   POWER,  pp.  7,  60-67,  68-69. 

FEES   AND  COSTS,  not  to  be  demanded  of  accused  persons.  III,  §  146. 

FELLOW-SERVANT    DOCTRINE  (See  Labor),  done  away  with,  etc..  Ill, 

§  534. 
FELONY, 

disfranchisement  for  (see  Office,  Suffrage),  III,  §  253. 
what  is,  III,  §§  152,  153,  154,  156,  158. 


368  INDEX 

FENCES,  special  laws  forbidden,  III,  §  395. 
FERlUi:S, 

special  laws  forbidden,  III,  §  395. 

tolls  may  be  regulated.  III,  §  G05. 
FIFTH    AMENDxMENT,  U.  S.  Const.,  pp.  16,  17,  23,  32,  61,  67. 
FINES, 

not  to  be  excessive,  etc.,  pp.  22,  92;  III,  §  140. 

remitted  by  Governor,  etc.,  §  164. 
special  laws  forbidden,  III,  §  395. 
FIRE,  provisions  for  protection  against  {see  Forest),  III,  §  444. 
FISH,  protection  of,  special  laws  forbidden.  III,  §  395. 
FISHING  {See  Hunting),  III,  §  417. 
FLAG,  U.  S.  only  to  be  carried,  III,  §§  63,  299. 
FLUMES,  land  may  be  taken  for,  III,  §  92. 
FOREIGN   CORPORATIONS  (See  Corporations),  III,  §  506. 
FORESTALLING,  etc.,  early  statutes  against,  pp.  3,  6,  38,  93-96. 
FOREST,  law  of,  objected  to,  p.  42, 
FORESTS,  State  reservations.  III,  §  409. 
FORFEITURES, 

forbidden,  p.  79;  III,  §  142. 

remitted  by  pardon,  §  164. 
FORNICATION,  unlawful  for  girls  under  14,  III,  §  431. 
FOURTEENTH  AMENDMENT,  discussed,  pp.  17,  32,  34,  41,  48,  61,  64,  76,  77; 

III,  §  157. 
FOURTH   AMENDMENT,  p.  46. 
FRANCHISES, 

may  be  taken  under  eminent  domain,  III,  §  97. 

never  irrevocable  (see  Corporations),  or  alienable,  III,  §§  503,  517. 

special  laws  forbidden,  III,  §  395. 

what  are,  pp.  31,  38;  III,  §§  416,  605. 
FRANCE,  laws  of,  people  not  subject  to,  p.  94. 
FRAUD,  by  debtors,  arrest  allowable,  pp.  97,  III,  §  80. 
FRAUDS,  Statute  of,  p.  104. 

FRAUDULENT   CONVEYANCES  (See  Bankrupts),  p.  102. 
FREE,  men  are  bom,  etc..  Ill,  §  10. 
FREE   CUSTOMS,  recognized  in  Magna  Carta,  III,  §  10. 
FREEDOM  of  Trade,  Labor,  etc.  (see  Liberty), 

of  legislatures,  pp.  43,  49,  100;    §  272. 

of  Speech,  pp.  43,  44,  87,  100. 

of  Speech  and  of  the  Press  in  State  Constitutions,  pp.  43,  III,  §  60. 
FREE   SCHOOLS  (See  Schools), 

age  of  scholars,  attendance,  etc.,  Ill,  §§  53,  55. 

established,  III,  §§  51,  52. 

language,  English  or  French,  III,  §§  57,  103. 

must  be  unsectarian  (see  Sect,  etc.).  Ill,  §  54. 

special  laws  forbidden.  III,  §  395. 

time  of  holding.  III,  §  52. 
FREIGHTS  (See  Corporations,  Railroads). 
FUNDAMENTAL   PRINCIPLES, 

governing  legislation,  III,  §  391. 

recurrence  to,  necessary,  p.  45;  III,  §§  5,  6,  185. 
FUTURES,  dealing  in,  forbidden  (see  Stockjobbing),  p.  71;  III,  §  443. 


INDEX  369 


G 


GAMBLING,  made  criminal,  III,  §§  155,  426. 
GAME    LAWS, 

early,  p.  93. 

protection  of,  special  laws  forbidden,  III,  §  395. 
GAOL,  gaols,  to  be  healthy,  etc.,  Ill,  §  140. 
GAOL    DELIVERY,  commissions  for,  prohibited.  III,  §  139. 
GARNISHMENT,  not  allowed  of  wages.  III,  §  88. 
GAS   COMP.\NIES  (See  Cokporations),  rights  in  streets,  III,  §  535. 
GENERAL   LAWS   ONLY,  in  certain  cases  (see  Special  Laws),  III,  §  502. 
GENERAL   VERDICTS  (See  Verdicts). 

GENERAL   WARRANTS  (See  Search  Warrants),  p.  45;  III,  §  71. 
GERRYMANDERING,  forbidden.  III,  §  21G. 
GOD,  belief  in,  necessary  for  office,  etc.,  Ill,  §  45. 
GOLD   AND   SILVER,  exports  forbidden,  p.  97. 
GOVERNMENT, 

object  of,  p.  36;    III,  §  183;   separation  of  departments.  III,  201. 
(see  Three  Functions). 

powers  of,  depend  on  consent  of  people,  pp.  47-51,  87-89;  III,  §  121. 
GOVERNOR, 

corruption  of,  §  154;   veto  power,  §§  304-306;   appropriations,  §  310. 

of  State,  elected,  etc.,  Ill,  §§  202,  232. 

powers  and  duties  of,  §§  280,  281;  reports  to,  §  281;  commands  militia, 
§  297. 

qualifications  of,  §  205. 
"GRANDFATHER"  clause  as  to  voting  (see  Election),  III,  §  246. 
GRAND   JURY  (See  Indictment),  pp.  12,  19,  76;  III,  §§  127,  128. 
GRAND   REMONSTRANCE,  the,  p.  104. 

GUARANTY   ASSOCIATIONS  (See  Corporations),  III,  §  502. 
GUARDS,  armed  (see  Pinkerton  Men),  III,  §  63. 
GUILDS,  in  England  (see  Liberty,  Trade,  Labor),  pp.  18,  31,  95-97,  99,  100. 


H 

HABEAS  CORPUS, 

Act,  pp.  23,  77,  104;  III,  §  125. 

history  of,  pp.  3,  18,  19,  20,  77,  104. 

suspension  of,  III,  §  126. 
H.\LLAM,  quoted,  pp.  16,  20. 
HAPPINESS,  a  natural  right.  III,  §  12. 
HARV.\RD   COLLEGE,    recognized   in   the   Constitution   of   Massachusetts, 

p.  70. 
HEALTH, 

provisions  for  public.  III.  §§  438,  440-442. 

State  Boards  of,  111,  §§  202,  441. 
HEREDITARY   PRIVILEGES,  forbidden,  p.  41;   III,  §  17   (See  Privilege). 
HERESY,  laws  against,  p.  98. 
HIGHWAYS, 

special  laws  forbidden.  III,  §  395. 

State  roads,  provided  for  in  Constitutions,  III,  §  409. 

24 


370  INDEX 

HOMESTEAD, 

alienation  of,  when  allowed,  III,  §  84. 

does  not  avail  against  certain  liens,  III,  §  83. 

laws  for  reijuired,  III,  §  32. 

to  be  reconled,  duration  of,  etc.,  Ill,  §§  85,  86. 
HOURS   OF   LABOR  (See  Labor),  p.  7L 
HOUSE   OF   REPRESENTATIVES, 

Congress, 

State,  III,  §§201,  203,  204. 
HUNTING   AND   FISHING,  general  right  to  (see  G.\me  Laws),  III,  §  417. 
HUSBAND   AND   WIFE  (See  Women). 

not  to  testify  against  each  other,  III,  §  136. 
HUSBAND,  Life  insurance  policy  of,  exempt  against  creditors,  III,  §  81. 


IMMIGRATION, 

encouraged  or  prohibited,  III,  §§  66,  202,  325. 

State  Commissioner  of.  III,  §  202. 
IMMUNITIES  (See  Privilege), 

special  laws  forbidden,  III,  §  395. 
IMMUNITY  (See  Criminating  Evidence),  required  where  evidence  is  com- 
pelled, p.  46. 
IMPEACHMENT, 

effect  of,  §  263;  removal  by  governor,  etc.,  §  265. 

in  England,  p.  96. 

in  United  States,  pp.  49,  56,  67;  III,  §§  260-263. 

not  pardonable  (see  Pardons),  p.  49;  §  161. 
IMPRISONMENT,  for  debt,  forbidden,  pp.  23,  41;  III,  §  80. 
INALIENABLE   RIGHTS,  pp.  76-77;  III,  §  12. 
INCOME  TAXES,  III,  §  339. 

INCORPORATING    VILLAGES,  special  laws  forbidden,  III,  §  395. 
INDETERMINATE   SENTENCES,  allowed,  III,  §  140. 
INDIANS,  right  to  vote  (see  Citizens),  III,  §  240. 
INDICTMENT, 

history  of.  III,  §  127,  notes. 

necessary,  pp.  16,  20,  21,  76,  77,  95. 
INDIVIDUAL   RIGHTS,  governments  instituted  to  protect,  pp.  10,  36,  51, 

69,  76,  77;   III,  §§  6,  183. 
INDUSTRIAL   CORPORATIONS  (See  Corporations),  III,  §  502. 
INFAMOUS  CRIME  (See  Felony). 

INFORMATION,  allowed  instead  of  indictment,  pp.  16,  19;  III,  §  127. 
INHERENT,  implied  Federal  powers,  discussed,  pp.  65,  66. 
INHERITANCE   TAXES  (See  Tax),  III,  §  339. 

INITIATIVE   AND   REFERENDUM  (See  Legislation),  pp.  48,  55-57,  69, 
70;   III,  §§  1,201,  309. 

effect  of  State  Constitutions,  p.  69. 

in  cities  and  towns  (see  Revenue,  Taxation,  Debt),  III,  §§  600,  601; 
on  State  debt  law,  §§  316,  361,  363;  internal  improvements,  §  324; 
taxes,  §  341;   loans  of  credit,  §  346;   on  municipal  debts,  §§  370,  372. 

referendum  forbidden,  §  308. 
INJUNCTIONS  (See  Chancery),  history  of,  pp.  11,  15,  24-29,  99. 
INQUEST,  of  life  and  limb,  p.  77. 


INDEX  371 

INQUISITIONS,  forbidden  (see  Search  Warrant,  Ceiminating  Evidence). 
INSPECTION    LAWS,  forbidden,  III,  §  441. 
INSTRUMENT   OF   GOVERNMENT,  the,  p.  104. 
INSURANCE  COMMISSIONER,  in  States,  III,  §  202. 
INSURANCE  COMPANIES  (See  Corporations),  III,  §§  502,  560. 

creating,  special  laws  forbidden.  III,  §  395. 
INSURANCE,  life,  of  husband  exempt  against  creditors,  III,  §  81. 
INTEREST   ON   MONEY,  rate  allowed,  p.  103;  III,  §§  422,  556. 
INTERNAL   IMPROVEMENTS, 

land  may  be  taken  for.  III,  §  92. 

special  laws  forbidden.  III,  §  395. 

State  may  not  engage  in,  §§  324,  391;   nor  town,  §§  345,  370. 
INTERSTATE  COMMERCE   CLAUSE,  discussed,  pp.  62-65. 
INTIMIDATION,  of  Labor,  etc.,  Ill,  §  14. 
INTOXICATING   LIQUORS, 

constitutional  provisions,  pp.  70,  71;   III,  §§  445-448. 

laws  may  regulate  traffic,  §  445;    constitutional  prohibition,  §  446;  local 
option,  §  447;  dispensary  system,  §  448. 
IRRIGATION, 

a  public  use,  III,  §  92. 

corporations  for  (see  Corporations),  III,  §  502. 

new  provisions  concerning,  p.  71 ;  III,  §  418. 
ISSUES,  feigned,  abolished,  III,  §  672. 


JAIL  (See  Gaol). 

JEOPARDY,  twice  in,  principle  of,  pp.  23,  76,  78;  III,  §  137. 

JEWS,  early  laws  against,  pp.  93-95. 

JUDGES, 

appointments  and  terms  of,  pp.  50,  67,  80,  81,  103,  104;  III,  §  654. 

must  know  tlie  law,  pp.  17,  80. 

opinions  by,  to  legislature  or  governor.  III,  §  652. 

opinions  to  be  in  writing,  etc.,  and  speedy.  III,  §§  653,  665,  666. 

publication  of  reports,  etc.,  §  666. 

removal  of.  III,  §§  265,  266,  267. 
JUDICIAL   SYSTEM,  of  States,  p.  72;  III,  Arts.  65,  66. 
JUDICIARY   ACT,  of  United  States,  p.  24. 

"JUDGMENT  OF  HIS  PEERS"    (See    Trial    by    Jury,    Due    Process 
OF  Law). 

special  laws  forbidden.  III,  §  395. 
JURIES, 

charges  to,  not  on  facts,  etc..  Ill,  §  675. 

constitution  of  (see  Verdicts),  number,  etc..  Ill,  §§  74,  132,  673,  674. 

punishment  of  by  attaint,  p.  21. 

religious  test  for,  none,  III,  §§  45,  673. 

special  laws  forbidden.  111,  §  395. 
JURY  (See  Trial  by  Jury,  Grand  Jury),  right  in  Constitutions,  pp.  75-77. 
JUSTICE,  an  object  of  government,  III,  §  10. 
JUSTICES   OF  THE   PEACE,  first  instituted  in  England,  pp.  26. 

in  State  Constitutions,  III,  §  651. 


372  INDEX 


KING, 

encroachments  of,  pp.  4,  54. 
power  of,  p.  8;  III,  §  200  n. 


L 

LABOR, 

foundation  of  the  right  to  property.  III,  §  13. 

freedom  of  (see  Liberty),  pp.  18,  27,  30-35,  75-76,  101. 

hours  of,  regulation,  pp.  33,  34,  71,  99,  101. 

unhivvful,  §  451  n. 
injunctions  in  labor  cases,  pp.  24,  25. 
protection  of  by-laws,  p.  71. 
regulating,  special  laws  forbidden.  III,  §  395. 

right  to  (see  Freedom,  supra),  III,  §§  14,  450-465,  506,  509,  535,  536. 
State  Commissioner  of  (see  Arbitration),  III,  §  202. 
wages  of,  may  not  be  fixed  by  law,  pp.  34,  71,  99;   III,  §  14. 
LABOR    LAWS,  provided  for,  as  to  factories,  mines,  etc.,  Ill,  §§  450,  460,  401; 
day's  work,   §  451;    wages,   §  452;    in  pviblic  work,   §  453;    in  special  em- 
ployments, §  454;   of  women  and  children,  §  455;   payment  of  wages,  p.  34, 
§  456;  truck  laws,  ib.;  lien  laws,  §  457;  of  contractors,  ib.;  blacklists,  §  458; 
strikes,  etc.,  §459;  employer's  liability,  §  462;  contracting  out,  ib.;   prison 
labor,  §  463;   alien  labor,  §  464;   arbitration,  §§  465,  661. 
LABORERS  (See  Servants). 

debts  due,  no  exemption  against,  III,  §§  81,  83. 
political  control  of,  §  450. 
statute  of,  pp.  27,  95-96,  102. 
LAND, 

companies,  forbidden.  III,  §  403  n. 
Federal  government  no  general  power  to  own,  p.  61. 
laws  concerning,  p.  71. 

monopoly  in  holding,  forbidden.  III,  §§  404,  581. 
ownership  of,  forbidden  to  Chinamen,  aliens,  etc..  Ill,  §§  22,  102. 
special  laws  forbidden.  III,  §  395. 
State  Commissioner  or  land-office.  III,  §  202. 

tenure  of,  allodial,  p.  71;    III,  §  400;   escheat,  §§  400,  401;  feudal  tenures 
abolished,  §  401;    restraints  on  alienation,  ib.;    entails,  §  402;    perpetu- 
ities, ib.;    primogeniture,  ib.;    mortmain,   §  403;    monopoly  of,   §404; 
long  lease,  §  405;  record  of  deaths,  §  406;  public  lands  of  United  States, 
§  407;    of  States,  §  408;    forests,  §  409. 
LAND-GRANTS,  English,  not  valid  in  New  York,  III,  §  76. 
LAND    REGISTRATION,  courts  of.  III,  §  651. 
LANGUAGE,  taught  in  schools,  records,  etc..  Ill,  §§  57,  103. 
LAW  (See  Common  Law), 

English  view  of,  as  opposed  to  continental,  pp.  4,  6,  11-17,  75-77,  80,  81. 
right  to,  general.  III  §  70;  "Law  of  the  Land,"  etc.,  §  130. 
LAWS  (see  Legislation), 

for  the  good  of  the  whole.  III,  §  11. 

in  force  before  Constitution,  remains  valid,  III,  §  77. 

must  be  general,  III,  §§  394,  660. 

people  must  consent  to.  III,  §  10. 

private  or  local,  when  forbidden,  III,  §  395. 

public,  what  are  (see  Private  Laws),  III,  §  394. 

unconstitutional,  are  void,  pp.  7-9;   III,  §  3. 


INDEX  373 

LAWS,  GENERAL,  may  not  be  suspended  by  the  king,  pp.  52,  79;   III,  §  IG; 

by  the  legishiture,  p.  79. 
may  be  suspended  by,  when,  III,  §  392. 
impairing  contracts,  forbidden.  III,  §  393. 
none  passed  except  by  bill,  §  300. 
LEASES,  period  of,  limited,  III,  §  405. 
LEGISLATION,  early  history,  pp.  4-5,  98,  102-104. 
allowable  subject  of,  III,  §§  390,  391. 

bills  for,  §  300;  must  pass  both  Houses,  ib. ;  form  of,  §  301 ;  must  relate  to 
one  subject,  expressed  in  title,  ib.;   technical  words  avoided,  ib.;   codes 
enacted,  ib.;    reference  to  committee,  §  302;    these  rules  are  directory 
merely,  §  302  n.;  bills  not  passed  after  time  limit,  ib.;  §  306;  reading  of, 
ib. ;  private  or  local  bills,  ib. ;  majority  vote  of    quorum  or  full  house, 
§  303;   names  to  be  entered  on  journals,  ib. ;   private  interest  of  members 
disclosed,  §§  154,  303;  reconsideration,  §  303;   veto  of  bills,  §§  304,  305; 
amendments,  repeals,  and  revisions,  §  307;    defeated  bill  not  to  be  re- 
introduced,   §   306;    territorial   legislation   approved   by   Congress,   ib.; 
special  sessions  legislation  limited  to  call,  ib.;    laws  take  effect,  when, 
§  308;    referendum  forbidden,  §  308;    revenue  bills,  §§  310-315;    two- 
thirds  vote,  §  313;  matters  of  legislative  power,  §  390. 
by  the  people  {see  Initiative),  pp.  4,  5,  48;  III,  §  1. 
in  England,  pp.  6,  12,  52;   III,  §  300   n. 
in  State  legislatures,  III,  §§  300-316. 
LEGISLATURES, 

State,  deprived  of  responsibility  by  modern  State  constitutions,  pp.  70,  71; 
III,  §§  1,  395  n. 
constitution  of,  pp.  55,  56;  III,  §  201. 
corruption  of,  punished,  etc..  Ill,  §  154. 
pay  of,  §  206;  qualifications  for,  §  204. 
powers  of,  generally,  pp.  44,  48,  49,  56;  III,  §  270;  may  determine  con- 
tested elections,  §§  238,  270;  choose  officers,  §  270;  punish  for  contempt, 
§§  270,  276;  expel  members,  §  276. 
restrictions  on,  generally,  III,  Arts.  39-58;  may  not  charter  corporations, 

III,  §  502. 
quorum  in,  §  271;  free  speech  in,  §  272;  freedom  from  arrest,  §  273; 
sessions  of,  must  be  open,  §  274;  journals  to  be  kept,  §  275;  time  and 
date  of  session,  p.  48;  III,  §  277;  pay  limited,  ib.;  duration  of  sessions 
limited,  ib.;  extra  sessions,  ib.;  adjournment,  §  278;  place  of  session, 
§  279;  time  of,  p.  37. 
LEGITIMACY, 

children  of  slaves,  II,  §  22. 
of  children,  early  law,  6. 
LEVEES,  provided  for,  III,  §  418. 
LIBEL,  truth  may  be  given  in  evidence,  etc..  Ill,  §  61. 
LIBERTY, 

a  national  right  (see  Slavery,  Habeas  Corpus),  pp.  20,  76-80,  100;    III, 

§§  5,  10,  12,  183. 
English  ideas  of,  pp.  4,  18-23,  25,  75-77,  100. 
of  labor  or  trade  {see  Labor). 
of  the  press,  etc.  {see  Freedom),  III,  §§  10,  14. 
under  the  U.  S.  Const.,  pp.  9,  66,  69. 
under  written  constitutions,  pp.  75-77. 
LIBR.4RL\N,    STATE,  III,  §  202. 
LIBRARIES,  public,  provided  for,  III,  §  58. 
LICENSE  TAXES  (See  Taxes). 
LIENS  (See  Artisans,  Mechanics,  Labor). 
special  laws  forbidden.  III,  §  395. 


374  INDEX 

LIEUTENANT  GOVERNOR,  in  many  States,  duties  of,  III,  §§  202,  282. 
LIFE   INSURANCE,  policy  when  exempt  against  creditors.  III,  §  8L 
LIFE,  right  to,  p.  IS;  III,  §  12. 

LIMITATIONS   OF  ACTIONS,  special  laws  forbidden,  III,  §§  395,  680. 
LINCOLN,    ABRAHAM,  signed  Thirteenth  Amendment,  p.  51. 
LIQUOR   BUSINESS, 

special  laws  forbidden,  III,  §  395. 

State  may  engage  in  {see  Intoxicating  Liquors),  III,  §§  6,  448. 
LITERARY   CORPORATIONS  (^ccCokpohations),  III,  §  502. 
LITERATURE,  to  be  encouraged.  III,  §  50. 
LIVESTOCK, 

health  of,  III,  §  440. 

special  laws  forbidden.  III,  §  395. 
LOAN     AND    TRUST    COMPANIES,  creating,  special  laws  forbidden.  III, 

§395. 
LOAN   ASSOCIATIONS  (See  Corporations),  III,  §  502. 
LOBBYING,  a  felony,  III,  §  153. 
LOCAL   BILLS  {See  Private  Bills,  Laws). 

LOCAL   SELF-GOVERNMENT  (See  States  Rights,  Courts,  etc.),  p.   69. 
LOCAL   OPTION  {See  Intoxicating  Liquors),  III,  §  447. 
"LOG-ROLLING,"  a  felony.  III,  §  154. 

LONDON,  freedom  of,  liberties  of,  pp.  14,  31,  84,  93;   III,  §  10. 
LORD'S   DAY  (See  Sunday). 
LOTTERIES,  prohibited,  III,  §  426. 
LYNCH  LAW  (See  Mobs). 


M 

MAGNA    CARTA,  pp.  1,  5,  13,  14,  16,  17,  19,  21,  22,  30,  32,  36,  37,  46,  48, 

75-89,  91;  III,  §§  3,  10. 
MAJORITIES,  not  omnipotent,  III,  §  182. 

MAJORITY    VOTE,    when  necessary  {see  Elections),  III,  §  232. 
MANUFACTURING   CORPORATIONS  (See  Corporations),  III,  §  502. 
MANUFACTURING,  regulating,  special  laws  forbidden,  III,  §  395. 
MARINERS  (See  Sailors). 
MARKET  TOWNS,  laws  concerning,  6. 
MARRIAGE, 

laws  concerning,  III,  §  436. 

of  negroes  (see  Miscegenation),  III,  §  22. 

of  priests,  p.  101. 
MARRIED   WOMEN  (See  Women,  Husband  and  Wife). 
MASSACHUSETTS, 

Body  of  Liberties,  pp.  16,  20,  21,  22,  23,  26,  36,  37,  40,  41,  42,  45,  50,  75-89. 

Declaration  of  Rights,  pp.  46,  76-89. 
MARTIAL    LAW,  under  constitutional  documents,  pp.  82-83. 
forbidden,  pp.  15,  20,  42;  III,  §§  126,  293. 

military  power  subordinate,  p.  42 ;   §  292. 
MECHANICAL   CORPORATIONS  {See  Corporations),  III,  §  502. 
MECHANICS'    LIENS,  property  not  exempt  from.  III,  §§  81,  83. 
MERCANTILE   CORPORATIONS  (See  Corporations). 
MERCHANTS,  liberties  of  (see  Trade),  pp.  31,  32,  77-89,  93,  98. 
MERTON,  Statute  of,  pp.  6,  92. 


INDEX  375 

MIDDLEMEN,  early  laws  against,  p.  102. 

MILITARY    LAW  (See  Militia,  Martial  Law),  pp.  42,  43,  76;  III,  §  294. 

applies  only  to  army,  etc..  Ill,  §  293;    billeting  soldiers,  §  295. 
MILITARY,   STAxNDING   ARMIES,  p.  42;  III,  §§62,^93. 

prohibited,  p.  42;  III,  §§  293,  294. 
MILITIA, 

general  provisions  and  historj',  pp.  41,  42,  82,  83-90;  III,  §  290. 

privileges  of,  §  296;   governor  commands,  §  297;   when  called  out,  §  278; 
flag  and  drill,  §  299. 

State,  III,  §§  290-299;  how  made  up,  §  291;  under  civil  power,  §  292. 
MILLS  (See  Labor). 

MINERS,  hours  of  labor,  etc.,  Ill,  §§  450,  454. 
MINES  (See  Labor),  State  Commissioner  of,  III,  §  202. 
MINING,  regulating,  special  laws  forbidden.  III,  §  395. 
MINING   CORPORATIONS  (See  Corporations),  III,  §§  502,  508. 
MISCEGENATION,  of  blacks  and  whites  forbidden,  III,  §  22. 
MOBS,  lynching  a  person,  officer  liable  for,  county  liable.  III,  §  165. 
MONEY, 

special  laws  forbidden,  III,  §  395. 

value  of  the  sliilhng,  p.  94;   III,  §  423. 
MONGOLIANS, 

Chinamen  may  not  hold  land,  etc.,  Ill,  §  22. 

may  not  vote  or  hold  office,  III,  §§22,  240. 

immigration  of,  discouraged.  III,  §  22. 

labor  of,  forbidden,  III,  §  22. 
MONOPOLIES  (See   Corporations,  Trusts),  forbidden,  pp.   71,   103;    III, 

§§  404,  518,  580,  581. 
MONOPOLIES,   STATUTE   OF,  Jac.  I,  pp.  3,  39,  103. 
MONOPOLY,  early  principles  against,  pp.  18,  31,  38,  39,  84;  in  U.  S.,  p.  67. 
MORALITY,  an  object  of  government.  III,  §  5. 
MORTGAGES,  taxable,  etc.  (see  Privileges),  III,  §  330. 
MORTMAIN  (See  Land),  p.  93;  III,  §  403. 
MULATTO,  definition  of.  III,  §  22. 

MUNICIPAL   COAL   YARDS,    unconstitutional.  III,  §  6. 
MUNICIPAL   CORPORATIONS,  III,  §§  502,  600-606. 

citizens  may  bring  suit  to  test  laws,  §  603 ;   loans  of  credit  by  (see  Debts), 
§§  345,  346. 

may  frame  own  charters,  §  600;  police  power  of,  §  601. 
MUNICIPAL   DEBTS,  TAXATION  (See  Debts,  Tax,  etc.). 
MUNICIPAL  GOVERNMENT,  general  system  of,  p.  72;   III,  §  604. 
MURDER,  not  bailable.  III,  §  121. 
MUTINY   ACT,  in  England,  p.  43. 


N 

NAMES, 

changing,  special  laws  forbidden.  III,  §  395. 

may  be  changed  by  legislature.  III,  §  432. 
NATIONAL    AND    STATE    POWERS    (See   Federal   Powers,   States), 

pp.  60-67,  106-118. 
NATURAL   RIGHTS, 

in  State  Constitutions,  p.  76;  III,  Arts.  I-IV. 

recognized  as  above  the  Constitution,  p.  7;  III,  §  4. 


376  INDEX 

NAVIGABLE   STREAMS  (See  Wateii),  are  free,  etc.,  pp.  31,  III,  §§  410,  411. 

NAVY  (See  Army  and  Navy). 

NEGROES  (See  Race  Distinctions,  Miscegenation,  Suffrage). 

immigration  of,  forbidden,  III,  §  22. 
NEWSPAPERS,  libels  by,  where  tried.  III,  §  Gl. 
NINTH   AMENDMI<:NT,  U.  S.  Const.,  discussion  of,  p.  7. 
NOBILITY  (See  Titles),  forbidden  in  States,  III,  §  17. 


o 

OATH  (See  Evidence,  Test,  Witness), 

necessary,  form  of.  III,  §  47. 

of  office,  required,  III,  §  223. 
OBLIGATION   OF  CONTRACTS  (See  Contracts). 
OBSCENE   BOOKS,  no  right  to  publish,  mail,  etc..  Ill,  §  60. 
OFFICERS, 

election  of,  special  laws  forbidden.  III,  §  395. 

servants  of  the  people,  etc.,  p.  48;  III,  §  184. 
OFFICES, 

appointments  to,  how  made,  p.  55;  III,  §  210. 

disqualifications  for,  III,  §§  151,  152,  154,  204,  222. 

farming  of,  forbidden,  pp.  14,  49;   III,  §  215. 

not  to  be  paid  after  death,  §  322. 

oaths  for,  §  223 ;  official  bonds,  §  224;  political  tests  forbidden,  §  225;  im- 
peachment and  removal  of,  §§  260-265,  268. 

open  to  all,  III,  §  21. 

pay  of  officers,  legislatures,  §  206;  other  officers,  §  213;  extra  pay,  §  214. 

plurality  of  offices  forbidden,  pp.  49,  55. 

qualifications  for.  State  legislatures,  §  204 ;  Governor,  §  205 ;  other  offices, 
§§  220,  221. 

religious  test  for,  none.  III,  §  45. 

tenure  of.  III,  §  212. 

vacancies  in,  III,  202,  211. 
ONSLOW,  Speaker,  rebukes  Elizabeth,  p.  16. 
OPINIONS,  of  Judges  (see  Judges). 
ORDEAL   BY   BATTLE,  abolished  in  1213,  pp.  12,  21. 
ORDEAL,  trial  by,  abolished,  p.  91. 
OUTLAW, 

meaning  of  term,  p.  12. 

no  citizens  to  be.  III,  §  141. 
OYER  AND  TERMINER,  commissions  for,  forbidden.  III,  §  139. 


P 

PARDON, 

effect  of,  §  162;   reprieves,  §  163;  fines  and  forfeitures  released,  §  164. 
of  duelHng,  §  151;    not  in  advance  of  trial,  p.  52;    nor  for  impeachment, 

p.  52. 
power  to,  in  Governor  or  Board,  III,  §§  160,  161. 
PARLIAMENT  (See  Legislation),  powers  of,  etc.,  pp.  12,  48,  87,  93,  94,  96, 

101. 
PAROLE,  of  prisoners,  allowed.  III,  §  140. 
PATENTS,  first  granted,  p.  103. 


INDEX  37 

PAYMENT   INTO   COURT,  to  stop  action,  etc.,  Ill,  §  681. 

PAY  {See  Offices,  Salaries). 

PEERS  (See  Jury). 

PENAL   SERVITUDE,  III,  §  30. 

PENSIONS, 

special  laws  forbidden.  III,  §  395. 

when  allowed  or  forbidden  in  States,  III,  §  18. 
PEONAGE   LAWS,  p.  25. 
PEOPLE, 

are  sovereign  in  U.  S.,  pp.  9,  47,  61. 

customs  of,  the  law,  etc..  Ill,  §  130. 

powers  of,  in  government,  etc.,  pp.  87-89;  IJI,  §  181. 

powers  reserved  to,  pp.  8,  9,  51,  60,  65;  III,  §§  4,  5,  193. 

PERPETUITIES  (See  Land,  Monopolies),  forbidden.  III,  §§  402,  404,  581. 
PERSONAL   PROPERTY  (See  Property),  in  early  times,  p.  36. 
PERQUISITES,  forbidden.  III,  §  213. 
PETITION, 

of  right,  1627,  pp.  3,  15,  20,  37,  45,  77-89;  right  of,  p.  86. 

of  31  Articles,  1406,  pp.  14,  49. 

right  to  (see  Assembly),  pp.  43,  44,  86;  III,  §  64. 
PINKERTON   MEN,  forbidden,  p.  43;  III,  §§  63,  299. 
PIPE   LINES,  are  common  carriers.  III,  §  521;   rates  may  be  fixed,  §  122. 
POCKETED   BILLS  {See  Legislation),  III,  §  305. 
POLICE   POWER, 

general,  pp.  33,  37,  38. 

in  States,  reserved,  p.  67. 

of  cities  and  towns.  III,  §§  600,  601,  606. 
POLITICAL   PROVISIONS,  of  State  Constitutions,  III,  §§  180-299. 
POLYGAMY   AND   BIGAMY,  not  excused  by  religion,  III,  §§  41,  155. 
POOLSELLING,  prohibited.  III,  §  426. 
POOLS  (See  Trusts). 
POOR   LAW, 

history  of,  p.  101;  III,  §  449  n. 

States  shall  enact.  III,  §  449. 
POST-ROADS,  federal  power  over,  p.  62. 
POWERS  {See  Federal,  State,  Reserved  Powers,  etc.). 
PRAECIPE,  writ  of,  in  England,  pp.  17,  81. 
PREAMBLE,  to  U.  S.  Const.,  p.  61. 
PREROGATIVE   WRITS,  what  are,  p.  11. 
PRESENTMENT  (See  Indictment). 
PRESIDENT, 

general  powers  of  (see  Executive),  pp.  52,  54. 

manner  of  election  of,  III,  §  217. 

may  suspend  habeas  corpus.  III,  §  126. 
PRESS  (See  Freedom  of  Speech),  censorship  of,  p.  103. 
PRICES, 

combinations  to  fix,  unlawful  {see  Trusts),  III,  §§  518,  580,  581. 

fixed  by  law,  pp.  92,  94. 
PRIMARIES,  laws  governing  (see  Elections),  III,  §  248. 
PRIMOGENITURE,  forbidden.  III,  §  402. 
PRINTING   PRESSES,  free  {see  Freedom  op  Speech). 
PRISON  (See  Gaol),  State  Commissioner  of.  III.  §  202. 
PRISON   LABOR,  allowed  or  forbidden  {see  Convicts),  III,  §§  140,  463. 


378  INDEX 

PRIVACY,  right  to,  pp.  41,  4G;  III,  §§  71,  307. 

PRIVATE    BILLS  {See  Legislation),  passage  of,  III,  §§  302,  313,  322,  395. 

PRIVATE    LAWS,  forbidden  as  to  many  subjects.  III,  §  395. 

PRIVATE    RIGHTS  {See  Individual  Rights,  Liberty,  Propeuty,  etc.). 

PRIVATE    WAR  {See  Pinkerton  Men),  III,  §  03  n.  5. 

PRIVILEGE, 

never  irrevocable,  §  503. 

special  or  exclusive  or  hereditary,  forbidden,  pp.  41,  84;   III,  §§  IG,  17,  501. 
PRIVILEGES,  to  be  recorded,  III,  §  420. 
PROCEDURE, 

in  courts.  III,  §§  653,  6G0,  G70-679. 
special  laws  forbidden.  III,  §  395. 
PROHIBITION  {See  Intoxicating  Liquors),  III,  §  446. 
PROPERTY  (See  Eminent  Domain), 

a  natural  right,  pp.  20,  30,  36-40,  66;  III,  §§  12,  90,  183. 
in  constitutional  documents,  pp.  76-77,  83. 
of  women  {see  Women). 
PROPERTY   QUALIFICATIONS, 
for  office,  III,  §§  204,  221. 
for  voting.  III,  §§  244,  246. 

in  tax  laws,  etc.  {see  Taxes,  Tax,  Taxation),  III,  §§  343,  346. 
PROVINCE    CHARTERS,  sources  of  State  Constitutions,  III,  §  3. 
PROXIES,  in  Corporations,  III,  §  510. 

PUBLIC   INFORMATION  (See  Freedom  of  Speech,  Libel,  etc.). 
PUBLIC   LANDS  (See  Lands),  of  United  States,  III,  §  507;  of  States,  §  508. 
PUBLIC    LIBRARIES,    SCHOOLS,   etc.   (See  Libraries,  Schools). 
PUBLIC    SERVICE   CORPORATIONS  (See  Corporations,  Railroads). 
PUBLIC   USE  (See  Eminent  Domain);  a  judicial  question.  III,  §§  91,  94. 
PUBLIC   WAREHOUSES,  duties  of,  etc..  Ill,  §§  433,  434. 
PUBLIC   WORK  (See  Labor), 
commissioner  of.  III,  §  202. 
PUBLISH,  right  to  (see  Freedom  of  Speech). 
PULLMAN   COMPANY  (See  Sleeping  Car). 
PUNISHMENTS, 

capital,  preserved,  p.  61 ;  III,  §  140. 

cruel  and  unusual  (see  Penal  Servitude),  pp.  22,  79;  III,  §  140. 
transportation  forbidden.  III,  §§  134,  141. 
PURCHASE   MONEY,  debts  for,  no  exemption  against,  III,  §  81. 
PURE   FOOD   LAW,  eariiest,  p.  93. 

Q 

QUARTERING  TROOPS,  forbidden,  etc.,  p.  82 ;  III,  §  295. 

QUIA  EMPTORES   STATUTE,  p.  93. 

QUO  WARRANTO,  early  law,  p.  93;  writ.  III,  §  660. 

R 

RACE  DISTINCTIONS  (See  Color,  Negroes,  Mongolians,  Suffrage),  for- 
bidden, p.  41;  III,  §§  20,  21. 

RAILROAD   COMMISSION  (See  Corporation  Commission),     III,     §§  202, 
532,  533. 
may  fix  rates,  §§  522,  523. 


INDEX  379 

RAILROADS  (See  Corporations), 

created  under  general  law,  §  502;  are  highways,  §  520;  common  carriers, 
§  521;  subject  to  control,  ib.;  rate  may  be  fixed  by  State,  ih.,  or  com- 
mission, I,  pp.  16,  53;  III,  §  522;  "sliort-haul"  clause,  §§  523,  532;  dis- 
crimination, §§  524,  52G;  rebates,  ib.;  cars  and  motive  power  to  be 
furnished,  ib. ;  to  all  express  companies,  ib. ;  commutations  and  passes, 
§  525;  connections,  §  526;  crossings,  ib.;  consolidations  and  combina- 
tions, §  527;  reports,  etc.,  §  530;  officers,  ib.;  to  allow  locations  to 
telegraph  companies,  §  537;  foreign  railroad  companies,  §  538;  switches 
§541. 

fee  of  land  taken  remains  in  owner,  III,  §  92. 

general  provisions  concerning,  p.  71;  III,  §§  520-559. 

incorporating,  special  laws  forbidden,  III,  §  395. 

liability  to  employees,  §  534;  for  death,  §  535. 

local  aid  to,  etc.,  §  539. 

location  of  (see  Eminent  Domain),  III,  §§  408,  529,  532. 

office  in  State,  etc.,  §§  507,  530. 

passes  forbidden,  §  525. 

rates  (see  above),  not  to  be  excessive,  §  524. 

rolling  stock,  personal  property,  taxable,  etc.,  §  528. 

stations  must  be  established  in  or  near  towns,  §  529. 

street,  §  536. 

taxes  or  forced  subscription  for,  forbidden.  III,  §  92. 

taxation  of,  §§  330,  540. 

tracks,  laying  down,  special  laws  forbidden.  III,  §  395. 

ultra  vires,  not  to  engage  in  other  business,  etc.,  §§  530,  531. 
RAPE,  made  criminal,  p.  92. 
RATES  {See  Corporations,  Railroads,  Franchises), 

combination  to  fix  or  control,  vmlawful,  III,  §  518. 

regulation  of,  generally,  pp.  6,  37,  38,  92,  95. 

to  be  equal  and  not  excessive,  p.  92;  III,  §§  524,  605. 
REAL   ESTATE,  sale  of,  special  laws  forbidden.  III,  §  395. 
REBATES  (See  Railroads,  Discrimination). 
REBELLION  (See  Civil  War), 

is  criminal  under  Fourteenth  Amendment,  III,  §  157. 

suspension  of  habeas  corpus  in,  III,  §  126. 
RECALL,  discussed,  p.  59. 
RECORD,  of  conveyances.  III,  §  406. 
REFERENDUM  (See  Initiative),  III,  §  309. 

on  State  debts,  §  316. 
REGISTRATION   OF   VOTERS  (See  Elections),  III,  §  236. 
REGULATION   OF   CHARGES  (See  Rates,  Railways,  Franchise). 
REGRATING  (See  Forestalling). 

RELIGION,  rights  to,  general,  pp.  45,  86,  101;  III,  §§  4,  40-48. 
RELIGIOUS   CORPORATIONS  (See  Corporations),  p.  101;  III,  §§  502,  570. 
RELIGIOUS   SOCIETIES,  recognized,  p.  101;  III,  §  50. 
RELIGIOUS   TEST, 

forbidden,  III,  §  45. 

in  schools.  III,  §  55. 
REMOVAL   OF  OFFICERS  (See  Impeachment),  III,  §§  265,  268. 
REPEAL,  of  laws  creating  corporations,  III,  §  503. 
REPORTS,  to  State  officers  (see  Corporations,  Railroads). 
REPRESENTATION, 

according  to  population,  p.  44;    III,  §  186. 

must  be  equal,  III,  §  20. 


380  INDEX 

REPRESENTATIVE   GOVERNMENT  (Sec  Initiative,  Legislation),  pp.  44, 

80,  92;    III,   §  10;  departed  from,  in  Okhilioina,  etc.,  pp.  55,  6G,  09;   III, 

§  182. 
REPRESENTATIVES,  House  of,  State,  III,  §§  201,  203,  204. 
REP11I1':VES  {See  Pardons). 

REPUBLICAN   FORM  OF  GOVERNMENT,  pp.  43,  47,  51,  01,  6G;  III,  §  182. 
REPUDIATION,  in  State  Constitutions,  III,  §  365. 
REPUTATION,  a  natural  right,  pp.  41,  42;  III,  §  15. 
RESERVED    POWERS,  to  the  people  or  the  States,  III,  §§  4,  193  (.see  Ninth 

Amendment). 
RESOLUTIONS,  joint,  subject  to  same  rules  as  bills,  III,  §§  303. 
RESTRAINT    OF   TRADE  {See  Monopolies,  Trusts,  Forestalling),  pp.  3, 

32,  38,  99. 
RETAINERS,  forbidden  in  middle  ages  (see  Pinkerton  Men),  p.  43;   III, 

§  G3n. 
RETROACTIVE   LAWS  (See  Ex  Post  Facto). 
REVENUE,  bills  for  (see  Tax,  Taxation),  pp.  37,  98. 
REVOLUTION,  right  to,  III,  §  181. 
RIGHTS  {See  Civil,  Natural,  Religious  Rights,  etc..  Liberty,  Property, 

Assembly,  Arms,  etc.). 
RIOTS   AND   DISORDERS  (See  Soldiers,  Militia,  Mobs),  pp.  14,  26,  49, 

100;  III. 
RIPARIAN   RIGHTS,  III,  §  419. 
RIVERS  (See  Water), 

rights  in,  p.  98;  III,  §§  410-412. 
ROADS, 

chartering,  special  laws  forbidden.  III,  §  395. 
corporations  for,  under  general  law.  III,  §  502. 

ROMAN   CHURCH,  in  England,  pp.  6,  92. 

ROMAN   LAW,  jealousy  of  in  England,  pp.  6,  11,  12,  14,  97. 

ROTATION   IN   OFFICE,  provided  for,  pp.  44,  51;  III,  §  212. 


S 


SAFETY,  a  natural  right.  III,  §  12. 

SAILORS,  trial  by  jury  modified  as  to.  III,  §  73 

SALARIES  (See  Office,  etc.), 

not  to  be  increased  during  term,  III,  §  206. 

to  be  fixed  and  reasonable,  §  213;  extra  forbidden,  §  214, 
SALADIN   TITHE,  p.  37. 
SCHOOLS, 

lands,  provisions  for.  III,  §  408. 

public,  to  be  established  {see  Free  Schools),  III,  §  50, 
debts  allowed  for,  III,  §§  370,  371. 
taxes  for,  III,  §§  337,  338,  342. 
to  be  open  to  all,  III,  §  21. 

white  and  colored  not  to  be  taught  together.  III,  §  22, 
SCIENCE,  to  be  encouraged.  III,  §  50. 
SEAL,  abolished  in  State  Constitution,  III,  §  421, 
SEAMEN,  contracts  of,  regulated,  p.  34. 
SEARCH  WARRANTS,  must  be  specific,  etc.,  pp,  45,  86,  104;  III,  §  71. 


INDEX  381 

SECESSION, 

forbidden,  III,  §  192. 

when  {)crmitted,  p.  66. 
SECRETARY,  of  State,  in  States,  III,  §  202. 
SECRET   SOCIETIES,  forbidden.  III,  §  61. 
SECTARIAN  APPROPRIATIONS,  etc.  (see  Religious  Rights). 
SECTS, 

gifts  to,  or  for  sectarian  purposes.  III,  §  44. 

no  preference  of,  or  appropriation  for,  III,  §§  43,  44,  54. 

sectarian  worsliip  forbidden  (see  Chukch,  Religion,  School). 
SENATE, 

federal,  senators  how  elected,  III,  §§201,  217. 

State  (see  Legislature),  III,  §§  201,  203,  204. 
SENATORS,  State's  rights  to  two,  inalienable,  p.  66. 
SEPARATION   OF   THE   POWERS  (See  Three  Functions,  etc.). 
SERVANTS  (See  Laborers), 

debts  due,  no  exemption  against,  III,  §  81. 

wages  not  attachable.  III,  §  88. 
SERVICE,  long  tenns  forbidden,  III,  §  33. 
SERVICES,  religious,  no  appropriation  for.  III,  §  44. 
SETTLERS  (-See  Public  Lands),  III,  §  408. 
SEVENTH   AMENDMENT,  U.  S.  Const.,  p.  15. 

SEWERAGE   SYSTEM,  town  and  city  debts  for,  etc.,  Ill,  §§  370,  371. 
SEX   DISTINCTIONS  (See  Suffrage),  p.  41;  III,  §§  23-25. 

as  to  custody  of  children,  III,  §  27. 

as  to  property,  III,  §  26. 

forbidden  in  States,  III,  §§  20,  25,  26. 

in  labor  or  trade.  III,  §  25. 

in  schools,  III,  §§  23,  50. 

in  voting  (see  Woman  Suffrage),  III,  §  22. 
"SHERMAN"  (anti-trust),  acts  of  1890,  1906,  p.  38. 
SHIPS    AND    VESSELS,  early  shipping  laws,  pp.  94,  97,  104;    contracts  of 

railroads  with,  forbidden.  III,  §  527. 
SHORE  (See  Water),  front  reserved  for  State,  tide  lands,  etc..  Ill,  §  413. 
SLAVERY  (See  Liberty,  Race  Distinctions,  Peonage,  Villeins),  III,  §  30. 

"  coolieism  "  declared  a  form  of,  III,  §  22. 

forbidden  in  all  American  territory,  p.  63. 

in  England,  pp.  19,  41. 

in  U.  S.,  pp.  21,  41,  75,  76. 
SLAVES, 

children  of,  legitimate,  III,  §  22. 

compensation  for,  forbidden,  III,  §  31. 

SLEEPING   CAR   COMPANIES,  common  carriers,  etc..  Ill,  §§  521,  532. 

SMITH,   WILLIAM,  "A  View  of  the  State  and  Federal  Constitutions,"  pp.  10, 

50. 
SOCIAL   CONTRACT,  idea  embodied  in  State  Constitutions,  III,  §§4,  11,  12. 
SOCIALISM, 

forbidden  in  State  Constitutions,  p.  61;  III,  §  6. 

in  Oklahoma,  III,  §§  6,  335. 

SOCIAL   RIGHTS  (See  Civil  Rights). 

SOLDIERS  (See  Army,  Martial  Law,  Militia,  Military),  billeting  of,  for- 
bidden, III,  §  295. 

military  companies  other  than  militia  forbidden.  III,  §§  63,  299. 
when  brought  into  State,  etc..  Ill,  §  63. 


382  INDEX 

SOVEREIGN   POWER,  in  the  U.  S.,  pp.  7,  8,  47.  61. 

SPANISH    LAW,  in  West,  etc.,  p.  71. 

SPECIAL    LAWS,  forbidden.  III,  §§  395.  502. 

SPECIFIC    PERFORMANCE,  doctrine  of,  pp.  24,  25. 

SPEECH  (See   Freedom  of  Speech). 

STAMFORD,  Statute  of,  p.  94. 

STANDING    ARMIES  (See  Army),  principle  against,  pp.  42,  82,  104. 

STAPLE, 

laws  abolished,  pp.. 94,  95. 

statutes  of,  p.  32. 
STAR   CHAMBER,  Court  of,  pp.  15,  24,  26,  100. 
STATE   CONSTITUTIONS,  irrepealable  provisions,  III,  §  155  n. 
STATE   DEBTS, 

amount  limited,  §§  360,  30 1;  temporary  loans,  §  360;  permanent  debt, 
§  361;  annual  tax  or  sinking;  fund,  §  360;  purposes,  §  301;  other 
debts  on  special  vote,  §  361 ;  term  of  bonds,  §  362;  referendum  on,  §  363; 
rebellion  debts,  illegal,  §  364. 

general  principles,  III,  §§  360-365. 
STATE   GOVERNMENTS, 

checks  and  balances,  §  328. 

frame  of,  III,  §§  180-299. 
STATE   SOCIALISM,  allowed  in  Oklahoma,  III,  §  6. 
STATES'    RIGHTS  (See  Federal  and  State),  pp.  60-67. 

preserved,  III,  §  193. 
STATE,  STATES, 

accounts.  III,  §  321. 

claims  against,  §  322. 

debts,  due  to,  may  not  be  released,  §  322,  680. 

debts  of  (see  Debt),  may  not  loan  credit.  III,  §  316;  nor  engage  in  inter- 
nal improvements,  §§  324,  326;  nor  assume  debts  of  corporations, 
ib. ;  nor  issue  bonds  to  railroads,  ib. ;  nor  subscribe  to  stocks  or  bonds, 
lb.;   nor  issue  money  or  credits,  §  327;   taxations,  taxes,  (see  Taxation). 

rights  of  (see  Federal  and  State  Power),  pp.  7,  60,  65,  67-69;   III,  §  4. 

suits  against.  III,  §§  75,  652,  680. 

STATISTICS,  State  commissioners  of.  Ill,  §  202. 
STATUTES  (See  Law,  Legislation,  and  various  titles  of). 

early  English,  pp.  13,  90. 
STAY    LAWS,  forbidden  (see  Debt),  III,  §  87. 
STEAMBOAT  COMPANIES,  subject  to  R.  R.  Coram.,  rates  may  be  fixed,  etc., 

Ill,  §§  522,  532. 
STOCKJOBBING,    buying   on   margins,   future   delivery,   prohibited,   p.    71; 

111,  §  425. 
STOCK,  stockholders  (see  Corporations). 
STREAMS  (See  Water). 

navigable,  special  laws  forbidden.  III,  §  395. 
STREET     RAILWAYS,  authorizing  construction  of,  special  laws  forbidden, 

HI,  §  395. 
STREETS,  vacating,  special  laws  forbidden,  III,  §  395. 
STRIKES,  legality  of,  p.  49;  III,  §  14. 
SUFFRAGE, 

confined  to  whites.  III,  §§  22,  240. 
disqualifications  for,  III,  §§  151,  152,  250-256. 

educational  qualifications,  III,  §245;  property  qualifications,  §244;  army 
and  navy,  §  243. 


INDEX  383 


SUFFRAGE  (Continued), 

female,  III,  §§  23,  240. 

general  qualifications,  p.  44;  III,  §§  240-256. 

given  to  all.  Ill,  §§  21,  240  n. 

grandfather  clause,  p.  41;   111,  §  246. 

residence  requirements,  §§  241,  242,  243. 

restored  by  pardon,  §  1G2. 

riglit  of,  history,  pp.  48,  87,  99. 
SUICIDE,  no  forfeiture  for,  111,  §  143. 
SUMPTUARY    LAWS,  in  England,  pp.  94,  95,  96. 
SUNDAY,  should  be  observed.  III,  §§  43,  48. 
SUPREME   COURT,  of  U.  S.,  p.  8. 
SURVEYOR,  State,  111,  §  202. 

SURVIVAL   OF   ACTIONS,  for  death,  etc..  Ill,  §  535. 
SUSPENSION   OF   LAWS,  by  executive,  III,  §  126. 


T 

TARIFF  (See  Duties,  Taxation). 
TAX, 

bills  for,  originate  in  lower  house.  III,  §  310. 

senate  may  amend,  ib.;    governor  may  veto  items,  ib.;   object  must 
be  stated,  §  314;  two-thirds  vote  necessary,  ib. 
TAXATION  (See  Taxes), 

Federal  and  State,  pp.  61,  67. 

general  principles,  in  State  Constitutions,  III,  §§  330-339. 

origins  and  history  of,  pp.  5,  12,  37,  38,  85,  86,  90,  91. 

power  inalienable,  §  330;   exemptions  from,  §  332;   amount  of,  limited  in 

States,  §  336. 
special,  §  337;  valuation  and  assessment,  §  334. 
of  Corporations,  generally,  III,  §  519. 
Franchise,  §  519. 
on  capital  stock,  §  519. 
on  property,  §  519. 
TAXES  (See  Taxation), 

boards  of  equalization.  State,  III,  §  354. 
by  general  laws,  §§  314,  330;  uniform,  §  333. 
collection  of,  III,  §§  350-354. 

in  States,  must  be  levied  for  public  purposes.  III,  §§  330  n,  335. 
may  not  be  released,  §  330;    nor  delegated,  ib.;    property  taxable,  §  331; 
poll,  ift.,  §  338;   inheritance,  §  330;   residence,  ift. ;  franchise,  t6.;  special, 
§  337;  school,  ib.;  income,  §  339;  license  or  occupation,  ib. 
no  exemption  against  levy  for,  III,  §  81. 

sales  for,  §  350;   list  required,  §  350;   redemption,  §  352;  titles,  §  353. 
special  laws  forbidden.  111,  §  395. 
TAXES   IN  COUNTIES,   CITIES,  TOWNS,   etc..  Ill,  §§  340-346. 

legislature  vests  authority,  §  341;    counties  to  pay  cash,  ib.;    amount  of 
tax  limited,  §  341;    purposes  of,  §  342;   general  power  restricted,  §  344; 
loans  of  credit  forbidden,  §  345. 
TAXPAYERS,  only,  may  vote  in  certain  cases  (see  Loans,  Debts,  etc.). 
TAX    SALES  (See  Taxes). 

TELEGRAPH    AND    TELEPHONE    COMPANIES  (See    Railroads),  III, 
§  537. 
are  common  carriers,  §  521;  rates  may  be  fixed,  §§  522,  532. 
connections,  §  526;  rights  in  streets,  §  536. 


384  INDEX 

TENTH  AMENDMENT,  U.  S.  Const.,  pp.  60,  GO. 

TENURE  (See  Land),  III,  §§  23,  372. 

TERMS   OF   OFFICE,  State,  III,  §  202. 

TERRITORIES, 

acts  of  Congress  admitting,  III,  §  51. 

delegates  of,  elected,  III,  §  217. 

"Federal  jurisdiction  over,"  p.  G3. 

legislation  of,  approved  by  Congress,  §  306;  public  lands  in,  §  307. 

TESTIFY,  right  to  (see  Witnesses,  Evidence,  Oaths),  III,  §  20. 

TEST  OATHS,  forbidden  (see  Religious  Test),  III,  §  45. 

THAYER,   JAMES   B.,  quoted,  p.  8. 

THIRTEENTH   AMENDMENT,  pp.  51,  63. 

THREE  FUNCTIONS   OF   GOVERNMENT, 

in  State  Constitutions,  §  200. 

legislative,  executive,  and  judicial  principle  discussed,  pp.  7,  8,  9,  44,  48,  50, 
51,  52,  55,  66,  80,  89;  III,  §  200  n. 
TITLES   FORBIDDEN  {See  Privilege),  p.  41;  III,  §  17. 
TOLLS  {See  Corporations,  Rates,  Railroads). 
TORTURE,  forbidden,  pp.  22,  78;  III,  §  123  n. 
TOWN   MEETING,  discussed,  p.  59. 

TOWNS  {See  Municipal  Corporations). 

general  laws  for,  p.  72;  III,  §§  600,  601. 

may  frame  own  charters,  §  600. 

taxation  in,  §§  340-346;  debts  of,  §§  370-374. 
TRADE, 

among  the  States  {see  Interstate  Commerce),  p.  67. 

freedom  of  {see  Liberty,  Labor),  pp.  18,  30-35,  75,  83,  84,  94,  95,  96; 
III,  §  14. 
TRADES-UNIONS  {See  Guilds,  Union  Labor),  p.  99. 
TRAMPS  {See  Vagabonds,  Vagrants). 
TRANSPORTATION, 

forbidden  {see  Banishment,  Punishment),  III,  §  141. 

for  trial,  complained  of,  p.  81. 
TRAVEL  {See  Conveyances). 
TREASON,  definition  of  {see  Attainder),  pp.  50,  61,  79,  102;  no  attainder  for, 

p.  79;  no  pardons  for,  p.  79;  III,  §  161;  not  bailable,  §  121. 
TREASURERS,  in  States,  III,  §  202. 
TREATIES,  power  to  make,  p.  55;  III,  §§  150,  191  n. 

TRIAL   BY   JURY, 

in  civil  cases,  pp.  12,  15,  16,  18,  20,  21,  22,  75-76,  78,  80,  81,  90,  94;    III, 
§§  72,  73,  74. 

in  criminal  causes,  pp.  12,  21;  III,  §§  130,  131. 

in  taking  under  eminent  domain.  III,  §§  94,  96. 

may  be  waived,  III,  §§  74,  131. 
TRIAL   BY   ORDEAL,  battle,  III,  §  131  n. 
TRIAL,  must  be  in  county  where  suit  brought.  III,  §  79. 
TRUANTS  {See  Free  Schools),  laws  against,  to  be  enacted.  III,  §  55. 
TRUST,  breach  of,  cause  of  imprisonment.  III,  §  70. 
TRUST  COMPANIES  {See  Corporations,  Banks),  III,  §§  502,  558. 
TRUSTEES  {See  Administrators). 
TRUST   FUNDS,  may  not  be  invested  in  corporate  securities.  III,  §§  424,  509. 


INDEX  385 

"TRUSTS"  (See  Monopolies), 

by  combining  corporations,  III,  §  518. 

general  subject  of,  pp.  38,  39,  40,  71 ;   III,  §§  580,  581. 
TRUTH,  a  defence  in  libel  suits  (see  Libel),  III,  §  61. 
TURNPIKE   COMPANIES,  chartering,  special  laws  forbidden.  III,  §  395. 
TYLER,  WAT,  rising  of,  pp.  19,  32. 


U 

"UNFAIR" COMPETITION,"  forbidden  (see  Railroads,  Trusts),  III,  §  518. 
UNION   LABOR,  recognition  of,  in  statutes,  pp.  35,  71. 
UNITED   STATES  [See  Constitution), 

sovereign  power  of.  III,  §§  190-192. 
UNIVERSITIES, 

Harvard,  Yale,  William  and  Mary,  Southern,  and  Leiand  Stanford  recog- 
nized in  State  Constitutions,  III,  §  56. 

State,  provided  for,  III,  §  56. 
"UNWRITTEN    LAW,"  antiquity  of,  p.  12. 
USURY  (See  Interest), 

early  law,  p.  101. 

forbidden  in  Stat.  Merton,  p.  6. 


VACANCIES,  in  offices,  how  filled,  III,  §§  202,  211. 
VAGABONDS,  laws  against,  pp.  97,  103. 
VAGRANT   LAWS,  State  shall  enact,  III,  §  449. 
VENUE, 

change  of.  Ill,  §  133. 

must  be  in  county,  etc.,  pp.  76,  81;  III,  §§  79,  130  n.,  133. 

special  laws  forbidden.  III,  §  395. 
VERDICTS, 

general,  history  of.  III,  §§  61,  132. 

of  juries,  need  not  be  unanimous  (see  Juries),  III,  §§  74,  131,  132. 
VETO, 

of  bills  (see  Legislation),  p.  56;  III,  §  304. 

of  president,  discussed,  p.  55. 
VICINAGE,  jury  of,  etc.  (see  Venue),  pp.  17,  78. 
VILLAGES  (See  Towns). 

incorporating,  special  laws  forbidden.  III,  §  395. 
VILLEINS,  villeinage,  pp.  19,  26,  27,  31,  96. 

VIRGINIA   BILL   OF   RIGHTS,  pp.  17,  21,  22,  42,  44,  45,  46,  48,  51,  76-89. 
VOTERS,  voting  (see  Suffrage,  Corporations,  Legislation). 
VOTING   MACHINES,  allowed,  p.  49. 


W 

WAGES  (See  Labor), 

not  attachable.  III,  §  88. 

payable  in  money,  etc.,  p.  31;  III,  §  456. 
WALES,  statute  of,  pp.  21,  93. 

WAREHOUSES,  warehouse  receipts,  III,  §§  433,  4*34. 

25 


386  INDEX 

WARRANTS  (See  Appropriations,  Search),  III,  §  320. 

must  have,  for  arrest,  etc.,  pp.  20,  104;  III,  §  120. 
WATER, 

debts  for,  specially  allowed  to  towns,  etc..  Ill,  §  371. 

drains,  §  415. 

front,  §413;    special  streams,  §411;    jurisdiction  over,  §412;    wharves, 
§414. 

irrigation,  p.  71;   III,  §  418. 

navigable  waters,  rights  in.  III,  §§  410-413. 

ownership  of,  in  public,  etc..  Ill,  §  418. 

power  to  tax  for,  unlimited,  §  344. 

rates  for,  to  be  fixed,  III,  §§416,  605. 

works  for,  a  public  use,  p.  71;  III,  §  91. 
WATER  COMPANIES  (See  Corporations),  III,  §  536. 
WAYS   OF   NECESSITY,  land  may  be  taken  for.  III,  §  92. 
WEBSTER,  DANIEL,  quoted,  p.  8. 

WEIGHING   AND   GAUGING,  offices  for,  forbidden.  III,  §  202. 
WESTMINSTER   I,  statute  of,  pp.  20,  92. 

II,  p.  93. 
WHARFAGE  (See  Corporations,  sub.  v.  Rates). 
WHARVES,  rights  to  maintain,  tolls,  etc.,  Ill,  §  414. 
WILLIAM   THE   CONQUEROR,  charters  of,  p.  13. 
WILLS,  Statute  of,  p.  101. 
WINCHESTER,  statute  of,  p.  93. 
WITCHCRAFT,  laws  against,  p.  101. 
WITENAGEMOTES,  early  use  of,  pp.  57,  58. 
WITNESSES  (See  Accused  Persons,  Evidence), 

evidence  of  deceased  parties  admitted.  III,  §  678. 

not  to  be  unreasonably  detained,  etc..  Ill,  §  124. 

right  to  be.  III,  §§  20,  21,  677. 

right  to,  pp.  21,  23,  50,  76. 

two  necessary  in  treason,  etc.,  pp.  78,  79. 
WOMEN  (See  Sex  Distinctions,  Labor), 

hours  of  labor  limited,  pp.  33,  71;  III,  §  455. 

separate  property  of.  III,  §  26. 
WOMAN   SUFFRAGE,  denied  or  permitted.  III,  §§  23,  240 
WRITS   OF   ERROR,  a  writ  of  right,  III,  §  139. 
WRITS  OF  RIGHT,  habeas  corpus  a.  III,  §  125. 


YORK,  Statute  of,  p.  94. 


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